[NdEAVW  BIDWELi  THRALL] 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
DAVIS 


LIFE   OF   OLIVER   ELLSWORTH 


THF     LIFE 


OLIVER     i'l  L8WORTH 


a  >iavuo 

HI   3U AM   YJaA3ORfI    jTaiTHA    HV/OKXKU    HA   Ycl   TIAai^OI   A 


THE    MA 


OLIVER    ELLSWORTH. 

FROM   A   PORTRAIT   BY  AN    UNKNOWN   ARTIST,   PROBABLY   MADE   IN    PARIS. 


THE    LIFE 


OF 


OLIVER    ELLSWORTH 


BY 


WILLIAM   GARROTT   BROWN 

AUTHOR  OF  "THE  LOWER   SOUTH  IN   AMERICAN 
HISTORY,"   ETC.,   ETC. 


THE    MACMILLAN   COMPANY 

LONDON:    MACMILLAN   &  CO.,  LTD. 

1905 

All  rights  reserved 

LIBRARY 

TT.VT'-v,  _    /- *  T 


COPYRIGHT,  1905, 
BY  THE  MACMILLAN  COMPANY. 

Set  up  and  electrotyped.     Published  November,  1905. 


Nortoootf 

J.  S.  Cashing  &  Co.  —  Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


TO 

W.   P.  F. 


PREFATORY  NOTE 

I  DO  not  think  it  worth  while  to  list  all  the  author 
ities  which  I  have  used  in  this  work.  The  foot 
notes  contain  specific  references  for  all  important 
statements  of  fact.  Whatever  contributions  the  book 
may  make  to  the  knowledge  of  Ellsworth's  life  have 
been  drawn  chiefly  from  certain  unpublished  sources 
—  letters  of  Ellsworth,  and  manuscripts  relating  to 
him,  of  which  the  most  valuable  are  two  by  Oliver 
Ellsworth,  Jr.,  his  son,  and  two  complete  biographies, 
one  by  Hon.  Joseph  Wood,  his  son-in-law,  and  the 
other  by  Rev.  Abner  Jackson,  sometime  president 
of  Hobart  College,  who  was  married  to  his  grand 
daughter.  Wood's  work  was  used  by  Flanders  and 
others  who  have  published  accounts  of  Ellsworth. 
So  far  as  I  know,  Jackson's  has  not  hitherto  been 
used  at  all. 

For  procuring  me  this  material,  and  for  help  ren 
dered  in  many  other  ways,  my  thanks  are  due  to 
various  members  and  connections  of  the  Ellsworth 
family.  To  Mrs.  F.  C.  Porter  of  New  Haven,  to  Mr. 
W.  W.  Ellsworth  of  New  York,  to  Mr.  and  Mrs.  W. 
Irving  Vinal  of  Washington,  to  Mrs.  P.  N.  Nicholas 
of  Geneva,  New  York,  to  Mr.  G.  E.  Taintor  of  Hart 
ford,  and  to  Mrs.  Elisha  Geer  of  Windsor,  I  wish  to 
make  a  particularly  hearty  acknowledgment  of  my 
obligation.  Many  other  persons  have  assisted  me 

vii 


viii  PREFATORY  NOTE 

with  information  or  suggestions,  —  among  them,  Pro 
fessor  A.  C.  McLaughlin,  Hon.  H.  C.  Lodge,  Professor 
F.  B.  Dexter,  and  Mr.  Cephas  Brainerd.  The  officials 
of  the  New  York  Public  Library,  and  those  of  the 
libraries  of  Harvard,  Princeton,  and  the  Massachusetts 
and  Connecticut  Historical  Societies,  have  courte 
ously  favored  me  with  access  to  material  in  their 
several  collections. 

W.  G.  B. 

CAMBRIDGE,  MASS., 
October  I,  1905. 


CONTENTS 


CHAPTER   I 

PAGE 

A  COLONIAL  BOYHOOD  AND  YOUNG  MANHOOD  .        .        ,        i 


CHAPTER  II 
THE  BAR  AND  THE  ASSEMBLY 30 

CHAPTER   III 
THE  CONTINENTAL  CONGRESS 53 

CHAPTER   IV 
THE  GREAT  CONVENTION 107 

CHAPTER  V 
THE  SENATE 177 

CHAPTER  VI 
THE  SUPREME  COURT     . 238 

CHAPTER  VII 
PARIS 282 

CHAPTER  VIII 
HOME 327 

APPENDIX  A 347 

APPENDIX   B 350 

INDEX 361 

ix 


LIST   OF   ILLUSTRATIONS 

OLIVER  ELLSWORTH Frontispiece 

From  a  portrait  by  an  unknown  artist,  probably  made  in  Paris. 

OPPOSITE  PAGE 

OLIVER  ELLSWORTH 180 

From  a  miniature  by  Trumbull,  now  in  possession  of  Yale  University. 

OLIVER  ELLSWORTH  AND  His  WIFE 258 

From  a  portrait  by  Earle. 

ELMWOOD,  ELLSWORTH'S  HOME  AT  WINDSOR       ....    330 

From  a  photograph. 


OLIVER   ELLSWORTH 
CHAPTER   I 

A   COLONIAL   BOYHOOD   AND   YOUNG   MANHOOD 

AMERICANS  nowadays  display  but  little  fondness  for 
the  earlier  periods  of  our  national  history.  Perhaps 
one  reason  is  that  along  with  our  astounding  growth 
in  territory  and  power  and  wealth  there  has  grown  up 
in  us  a  pride  of  mere  bigness  that  makes  us  irreverent 
and  impatient  of  the  little  things  it  all  began  with. 
Another  reason  may  be  that  we  have  wandered  so  far 
away  —  and  more  ways  than  one  —  from  those  ideals 
which  the  founders,  whenever  we  turn  back  to  them, 
seem  to  be  forever  holding  up  to  us,  not  without  an 
effect  of  warning  and  reproach.  But  I  think  that 
many  of  us  may  also  be  rendered  shy  of  Revolu 
tionary  history  and  biography  by  our  distaste  for  the 
kind  of  fervor  with  which  they  are  commended  to  us. 
The  zeal  displayed  in  celebrating  the  founders  is  too 
often  merely  partisan,  or  merely  academic,  or  merely 
antiquarian, —  or  merely  feminine.  Of  late,  a  journal 
istic  impulse  has  set  some  rather  clever  pens  to  work, 
revamping  our  oldest  stones,  upsetting  our  most  digni 
fied  traditions,  and  disturbing  our  reverence  for  our 
greatest  national  characters.  But  this  brisk  icono- 
clasm  reflects  too  clearly  the  commercial  motive  which 
is  now  so  dominant  in  all  our  journalism  to  take  strong 
hold  of  any  but  a  rather  shallow  class  of  readers. 


2  OLIVER   ELLSWORTH 

In  one  way  or  another,  however,  by  partisans  or  anti 
quaries,  by  learned  professors  or  by  clever  space-writers, 
by  pious  descendants  or  by  women's  clubs,  all  but  a 
very  few  of  the  leading  actors  in  our  earlier  scenes 
have  been  from  time  to  time  sufficiently,  if  not  always 
quite  fittingly,  bewritten  and  belauded.  John  Mar 
shall's  fame  is  still,  it  is  true,  for  want  of  a  competent 
biographer,  one  of  the  vaguest  of  our  national  posses 
sions  ;  and  even  of  Washington  there  is  not  yet  a 
written  life  of  a  preeminence  comparable  with  'that  of 
his  career  and  character.  But  I  think  no  other  in  the 
whole  list  of  revolutionists  and  founders  is  at  present 
in  quite  such  danger  of  losing  his  right  place  and  rank 
as  Oliver  Ellsworth  of  Connecticut.  Historians  apart, 
and  a  few  lawyers  with  a  historical  turn  of  mind,  the 
chances  are  that  not  one  in  a  hundred  of  his  country 
men  knows  to-day  a  single  fact  about  him,  save  that 
he  was  once,  for  a  little  while,  Chief  Justice  of  our 
highest  court.  Two  accounts  of  him  were  published 
about  the  middle  of  the  last  century,  but  both  belong 
to  series  of  lives  of  the  chief  justices,  now  but  little 
read. 

Yet  the  truth  is  that  if  any  one  man  can  be  called 
the  founder,  not  of  that  court  only,  but  of  the  whole 
system  of  federal  courts,  which  many  think  the  most 
successful  of  the  three  departments  of  our  government, 
Ellsworth  is  the  man.  In  the  famous  Convention  which 
determined  the  entire  framework  of  the  government, 
he  was  one  of  the  members  whose  names  should  always 
be  associated  both  with  the  general  character  of  the 
Constitution  and  with  important  specific  clauses.  To 
scholars  it  is  known  also,  though  the  evidence  is  some 
what  vaguer,  that  he  had  already  done  good  service  in 


A   COLONIAL   BOYHOOD   AND   YOUNG   MANHOOD      3 

the  Continental  Congress.  In  the  first  half-dozen  years 
of  Congress  under  the  Constitution,  when  it  was  almost 
constantly  engaged  in  constructive  legislation  second 
in  importance  only  to  the  Convention's,  his  influence 
was  so  great  that  if  any  man  could  be  called  the  leader 
of  the  Senate  in  that  period,  it  was  he.  His,  also,  was 
the  leading  role  in  one  of  two  negotiations  with  foreign 
powers  on  which,  even  more  than  on  domestic  contro 
versies,  the  safety  of  the  young  republic  seemed  for  a 
long  time  to  depend.  For  more  than  a  quarter  of  a 
century,  beginning  with  the  nation's  birth,  he  was, 
with  scarce  an  interval,  engaged  with  great  affairs  and 
in  high  places.  That  he  was  for  a  few  years  the  head 
of  the  judiciary,  before  its  work  attained  a  very  great 
importance  —  this  is  by  no  means  his  chief  title  to 
remembrance.  It  is,  rather,  the  most  factitious  of  his 
claims.  But  if,  on  the  other  hand,  it  is  not  a  mistake 
to  count  the  founding  and  the  working  of  govern 
ments  among  the  noblest  of  all  mundane  enterprises, 
other  and  more  solid  services  to  his  country  demand 
for  this  colonial  lawyer  greater  honor  than  has  ever 
been  his  portion  since  his  life-work  was  finished  — 
now  nearly  a  century  ago. 

I  do  not  wish  to  anticipate  the  reader's  judgment 
of  the  career  I  purpose  to  relate;  but  a  word  at  the 
outset  concerning  the  probable  causes  of  the  neglect 
of  Ellsworth  —  if  it  be  indeed  decided  that  he  was 
deserving  of  more  honor  than  he  has  received  —  may 
not  be  amiss.  If  the  accidental  plays  a  part  in  life 
and  in  history,  it  plays  at  least  an  equal  part  in 
biography  and  historiography.  Students  of  the  his 
tory  of  literature  know  well  enough  how  hard  it  is  to 
secure  for  the  contemporaries  of  the  greatest  masters 


4  OLIVER   ELLSWORTH 

their  just  award  of  fame.  If  Shakespeare  had  not  lived 
when  he  did,  a  dozen  poets  and  dramatists  would  doubt 
less  be  esteemed  more  highly  than  they  are.  In  affairs, 
the  misfortune  of  the  second  bests  is  quite  as  great. 
The  contemporaries  of  Washington  and  Hamilton  and 
Jefferson,  or  of  Lincoln  and  Lee  and  Grant,  lose  by 
obscuration  more  than  they  gain  in  reflected  lustre. 
In  nearly  all  his  memorable  activities,  Ellsworth  was 
the  associate  of  very  famous  men.  In  the  Continental 
Congress,  he  was  often  detailed  for  special  services 
with  Hamilton  and  Madison.  In  the  Constitutional 
Convention,  none  of  the  younger  members  could  hope 
to  make  such  a  figure  as  Washington's  and  Franklin's, 
while  the  actual  lead  in  the  debating  fell  most  natu 
rally  to  Madison  and  Randolph  and  Morris  and  Wil 
son.  When  Ellsworth  became  a  senator,  his  real 
leadership  was  never  clear  to  his  contemporaries,  for 
the  debates  were  secret,  and  men  like  Robert  Morris 
and  Richard  Henry  Lee  were  once  again  his  fellows. 
As  Chief  Justice,  he  followed  Rutledge ;  but  Rutledge's 
service  was  so  short  that  Ellsworth  might  as  well  have 
had  John  Jay  for  his  immediate  predecessor ;  and  his 
immediate  successor,  who  held  the  place  a  third  of  a 
century,  was  probably  the  greatest  judge  in  the  whole 
long  history  of  English  and  American  jurisprudence. 
Turning  his  hand  to  diplomacy,  Ellsworth  negotiated  a 
very  important  convention  with  France.  But  Jay's  treaty 
with  England,  negotiated  but  a  few  years  earlier,  had 
become  the  target  for  the  opposition's  fiercest  attacks ; 
it  attained,  therefore,  by  party  controversy,  a  celebrity 
which  neither  Ellsworth's  convention  nor  any  later 
treaty  could  rival.  Even  in  his  capacity  of  Connecti 
cut  leader  and  representative,  Ellsworth  was  again 


A   COLONIAL   BOYHOOD   AND   YOUNG  MANHOOD      5 

and  again  the  colleague  of  Roger  Sherman,  an  elder 
if  not  a  better  statesman. 

That  he  belonged  to  the  little  colony  of  Connecticut 
may  also  not  unreasonably  be  set  down  as  a  sort  of 
mishap  to  his  fame.  He  himself  was  very  far  indeed 
from  thinking  it  a  misfortune.  "  I  have  visited  several 
countries,"  he  said,  when  he  was  growing  old,  "and  I 
like  my  own  the  best.  I  have  been  in  all  the  states 
of  the  Union,  and  Connecticut  is  the  best  state. 
Windsor  is  the  pleasantest  town  in  the  state  of  Con 
necticut,  and  I  have  the  pleasantest  place  in  the  town 
of  Windsor.  I  am  content,  perfectly  content,  to  die 
on  the  banks  of  the  Connecticut." l  But  it  is  no 
controversion  of  this  loyalty  to  hold  that  from  the 
banks  of  the  Charles  or  the  Hudson  or  the  Potomac 
he  might  have  found  a  shorter  path  to  eminence 
among  his  contemporaries  and  to  the  reverence  of 
later  generations.  If  he  had  lived  in  any  one  of  the 
bigger  colonies,  leadership  in  continental  assemblies 
would  doubtless  have  been  easier  to  win.  A  New 
England  worthy,  he  would  have  stood  a  better 
chance  of  competent  literary  celebration  if  he  had 
belonged  to  Massachusetts.  Americans  from  all 
quarters  have  long  been  content  to  learn  their  coun 
try's  history  from  a  group  of  writers  who,  since  their 
own  homes  have  been  in  eastern  Massachusetts, 
have  taken  care,  with  a  zeal  that  ought  to  be  emu 
lated  rather  than  reviled,  to  guard  from  oblivion  the 
great  men  of  their  own  famous  commonwealth. 
Had  Ellsworth  been  of  these,  he  would  doubtless 
have  found  a  competent  biographer  among  the  men 

1  "  An  opinion  handed  down  by  Oliver  Ellsworth,"  which  hangs  in  a 
frame  beneath  his  bust  in  the  drawing-room  of  his  home  at  Windsor. 


6  OLIVER   ELLSWORTH 

of  letters  of  Boston  and  Cambridge.  But  Connecti 
cut,  colonized  in  large  part  from  the  slightly  older 
province,  has  too  often  been  content  to  accept  the 
place  which  the  people  of  the  Bay  Colony  assigned 
her,  and  to  figure  in  history  as  a  kind  of  hinterland 
to  Massachusetts.  In  later  years,  her  nearness  to  the 
still  more  populous  and  wealthy  state  of  New  York, 
and  to  the  greatest  of  our  cities,  has  affected  in  much 
the  same  way  the  popular  notion  of  her  importance. 
Referring  to  this  disadvantage  of  her  geographical 
situation,  more  than  one  Connecticut  orator  has  com 
pared  the  state  to  Issachar,  "  A  strong  ass  crouching 
down  between  two  burdens." *  To  many  of  us,  there 
fore,  Connecticut  still  remains,  in  history  as  in 
geography,  a  little  state  between  New  York  and 
Massachusetts.  Ellsworth  also  remains  what  at  one 
time,  occupying  a  compromise  position,  he  probably 
seemed  to  his  contemporaries,  —  an  obscure  figure  of 
a  statesman,  between,  let  us  say,  John  Adams  and 
Alexander  Hamilton. 

But  there  is  much  in  the  past  of  Connecticut,  and 
particularly  in  her  career  as  a  colony,  which  is  emi 
nently  deserving  of  our  interest,  quite  apart  from  any 
connection  with  either  Massachusetts  or  New  York. 
No  trained  student  of  our  institutions  will  lightly 
dismiss  any  reflection  of  the  late  Alexander  Johnston, 
and  it  was  his  opinion  that  Connecticut  had  so  good 
a  government  as  a  colony,  and  had  progressed  so  far 
in  the  experiment  both  of  democracy  and  of  the 
federal  principle,  that  when  the  time  came  for  our 

1  Wadsworth,  in  Connecticut  Assembly,  reported  in  American  Museum, 
October,  1787;  Ellsworth,  in  Convention  to  Ratify  the  Constitution. 
Elliot's  Debates,  II,  186. 


A   COLONIAL   BOYHOOD   AND   YOUNG  MANHOOD      7 

greater  national  experiment  she  presented  the  best  of 
all  the  object  lessons  which  the  founders  had  before 
them.  He  holds,  accordingly,  that  to  the  general 
scheme  of  our  government  no  other  state  contributed 
so  much  of  what  was  new,  of  what  was  American.1 
Her  constitution  of  1639  he  deliberately  pronounces 
"  the  most  far-reaching  political  work  of  modern  times." 
Such  a  claim,  from  such  a  source,  is  enough  to  arrest 
one's  attention,  even  though  the  varied  chronicle  of 
Massachusetts  distract  from  one  side,  while  on  the 
other  side  there  bulks  the  central  importance  of  the 
greatest  of  our  states  and  cities.  Every  day,  hurrying 
in  swift  railroad  trains  from  New  York  to  Boston,  or 
from  Boston  to  New  York,  hundreds  of  people  thunder 
across  the  entire  east-and-west  extent  of  the  little  in 
tervening  commonwealth.  From  north  to  south,  an 
ardent  pedestrian  has  walked  across  it  in  a  single  day. 
Most  travellers,  passing  over  it,  leave  it  still  unvisited. 
Yet  if  one  pauses  for  a  closer  view,  there  is  much 
worth  seeing  in  Connecticut.  Though  the  visitor 
knows  already  the  New  York  Highlands  and  the 
Hudson  River  about  West  Point,  even  though  he  also 
knows  the  charm  of  Massachusetts'  landscapes  and  the 
rugged  splendors  of  her  northern  shore,  he  will  wonder 
why  one  hears  so  little  of  the  beautiful  valley  of  the 
Connecticut. 

For  any  one  who  cares  to  look  into  Connecticut 
history,  there  are  equal  surprises.  There  is  in  it  the 
very  essence  of  those  New  England  ideals,  the  full- 

1  Alexander  Johnston's  "Connecticut,"  Preface,  and  pp.  322-325.  But 
in  the  American  Historical  Review  (IX,  480,  note),  Mr.  Max  Farrand 
has  pointed  out  that  the  evidence  is  wanting  to  prove  that  the  Constitu 
tional  Convention  of  1787  ever  did  take  the  Connecticut  system  as  a  model 
in  any  portion  of  its  work. 


8  OLIVER   ELLSWORTH 

est  exhibition  of  those  New  England  characteristics, 
for  which  we  oftener  look,  instead,  to  Massachusetts. 
The  ancient  town  of  Windsor,  a  few  miles  north  of 
Hartford,  is  at  the  centre  of  Connecticut's  most  charm 
ing  stretch  of  country.  It  is  the  centre  also  of  what 
is  best  and  strongest  in  the  traditions  of  the  little 
commonwealth.  "  Ancient  Windsor  "  now,  the  place 
was  at  least  old  Windsor  to  the  generation  that  fought 
the  war  of  independence.  Along  its  main  street,  which 
follows  for  some  miles  a  slight  ridge  or  "  sand  bank," 
parallel  to  the  broad  and  straight  Connecticut  River, 
scores  of  colossal  elms,  and  an  extraordinary  number 
of  good  colonial  houses  behind  them,  bear  witness  to 
its  age.  It  was,  in  fact,  one  of  the  three  towns  with 
which  Connecticut  history  began  ;  and  throughout  the 
colonial  period,  the  Revolution,  and  the  early  years  of 
independence,  it  contributed  to  the  service  of  the  col 
ony  and  the  state  a  long  list  of  honorable  names. 
They  are,  with  very  few  exceptions,  names  which  indi 
cate  that  the  original  source  of  the  first  immigration 
was  the  great  middle  class  of  English  society.  The 
only  perceptible  admixtures  were  Scotch,  or  Scotch- 
Irish,  and  Huguenot  French.  On  the  gravestones  of 
the  old  Windsor  burial-ground  one  finds  the  epitaphs 
of  generation  after  generation  of  Aliens  and  Allyns, 
Bissells,  Browns,  Cookes,  Drakes,  Edwardses,  Eggle- 
stons,  Ellsworths,  Enoses,  Filleys,  Fitches,  Gaylords 
(originally  Gaillard,  and  French),  Gilletts  (originally 
Gillette,  and  also  French),  Grants,  Griswolds,  Haydens, 
Loomises,  Mathers,  Newberrys,  Phelpses,  Pinneys, 
Rockwells,  Sills,  Stileses,  Stoughtons,  Thralls,  and 
Wolcotts.  The  same  names  have  appeared  and  reap 
peared,  at  frequent  intervals,  for  two  centuries  and  a 


A   COLONIAL  BOYHOOD   AND   YOUNG   MANHOOD      9 

half,  in  the  public  records  of  the  town,  the  colony,  the 
state.  ^Several  have  risen  to  high  places  in  the  lists 
of  the  servants  of  the  nation.  Generals  and  judges 
and  admirals,  inventors  and  men  of  letters,  leaders 
in  great  business  enterprises,  congressmen  and  sena 
tors,  and  at  least  one  President,  have  traced  their 
descent  from  men  who  came  to  Windsor  when  the 
country  all  about  it  was  a  wilderness.  The  two  Wind 
sor  names  which  emerged  into  the  clearest  light 
between  the  settlement  and  the  Revolution  were  those 
of  Edwards  and  Wolcott.  In  that  part  of  the  town 
which  lay  to  the  eastward  of  "  the  great  river,"  Jona 
than  Edwards  was  born ;  and  for  a  hundred  and  fifty 
years  there  was  scarcely  a  single  Windsor  generation 
that  did  not  look  to  a  Wolcott  as  the  foremost  citizen. 
The  first  of  the  Ellsworths  came  about  the  middle 
of  the  seventeenth  century.  Whence  he  came  is  not 
precisely  known ;  the  best-derived  conjecture  is,  from 
Yorkshire,  where  the  name  is  still  quite  common.1 
Neither  is  it  known  precisely  when  he  came,  but  the 
town  records  show  that  in  November,  1654,  he  was 
married  to  Elizabeth  Holcomb,  and  that,  the  same 
year,  he  bought  a  home  in  that  part  of  Windsor  which 
lay  to  the  south  of  "  the  little  river,"  as  the  Farming- 
ton  was  called,  and  to  the  west  of  "the  great  river." 
Ten  years  later,  however,  he  moved  across  the  Farm- 
ington  to  North  Windsor,  and  made  his  home  on  a  plot 
of  land  which  for  two  hundred  and  thirty-nine  years 
remained  in  the  hands  of  his  descendants.  From  the 

1  Henry  R.  Stiles's  "  Ancient  Windsor,"  II,  208-210  ;  Ms.  notes  by  Mr. 
W.  Irving  Vinal ;  two  Ms.  Lives  of  Ellsworth,  one  by  his  son-in-law,  Joseph 
Wood,  and  the  other  by  Rev.  Abner  Jackson,  president  of  Hobart  College, 
who  married  a  granddaughter  of  the  Chief  Justice. 


10  OLIVER   ELLSWORTH 

town  and  church  records  we  learn  further  that  he  was 
made  a  freeman  in  1657,  a  juror  in  1664,  that  in  1676 
he  gave  three  shillings  for  the  relief  of  the  poor  of 
other  colonies,  and  that  when  he  died  his  estate  was 
valued  at  .£655,  which  was  no  mean  sum  for  the  times 
and  the  country.  A  curious  list  of  taxpayers,1  made 
in  1675,  shows  that  for  substance  he  ranked  with  the 
first  of  his  contemporaries.  There  were  five  classes  in 
all,  and  the  highest  class,  of  which  each  member  pos 
sessed  "  a  family,  home,  and  four  oxen,"  numbered  but 
twenty-nine.  Ellsworth  was  of  these.  His  gravestone 
adds  to  these  proofs  of  good  standing  a  military  title 
somewhat  more  distinguished  in  the  seventeenth 
century  than  it  is  in  the  twentieth.  The  inscription 
reads :  — 

Sargient 

losiah2  Elsworth 
Aged  60  years 
He  Dyed  August  ye 
2oth  Day;  Ano.  1689. 

Nine  children  were  born  to  him,  and  the  graves  of 
his  descendants  are  clustered  thick  about  his  own. 
Many  of  these  are  marked  with  gravestones,  bearing 
each  a  title  or  a  pithy  record  of  some  good  work  done, 
or  at  least  some  honorable  place  held,  in  the  little  com 
munity.  The  sixth  child  and  third  son  of  the  immi 
grant  is  designated  on  his  gravestone  simply  as  "  Mr. 
Jonathan  Elsworth,"3  but  it  is  otherwise  known  of  him 

1  Stiles's  "Ancient  Windsor,"  I,  88. 

2  The  first  name  is  sometimes  given  as  "  Josias."    For  most  of  these 
facts  see  ibid.,  II,  210. 

8  But  in  the  family  Bible  of  Chief  Justice  Ellsworth  his  name  is  given  as 
David.  This  is  puzzling,  for  all  the  other  records  name  him  Jonathan. 
The  best  conjecture  I  can  make  by  way  of  explanation  is  that  by  a  slip  of 
the  pen  the  Chief  Justice  wrote  his  father's  name  for  his  grandfather's  —  a 


A   COLONIAL   BOYHOOD   AND   YOUNG   MANHOOD      n 

that  he  was  born  in  1669,  that  he  died  in  1749,  that  he 
was  a  successful  storekeeper  and  tavern-keeper,  a  man 
of  good  sense,  including  a  sense  of  humor,  and  that  in 
person  he  was  tall  and  strong.  His  wife  was  a  Grant.1 
Their  seventh  child  and  fourth  son,  born  in  1 709,  was 
christened  David,  and  it  is  "  Capt.  David  Ellsworth  " 
(this  time  with  two  1's)  on  his  gravestone.  The  title 
was  not  an  empty  one,  for  he  served  in  the  War  of  the 
Spanish  Succession,  known  in  America  as  the  Old 
French  War,  and  in  1745  commanded  a  company 
from  Windsor  at  the  famous  siege  of  Louisburg. 
Returning  in  safety  from  that  expedition,  which  was 
by  no  means  a  holiday  affair,  he  lived  to  the  eve  of  the 
recognition  of  the  colonies'  independence,  and  nearly 
all  his  life  he  was  selectman  of  his  native  town.  In 
heriting  a  hundred  pounds,  he  had  the  industry  and 
the  shrewdness  to  accumulate  a  considerable  estate, 
and  to  win  the  reputation  of  an  excellent  farmer.  A 
grandson  has  recorded  that  he  had  much  "  cunning,  or 
quick-turned  wit,"  and  "sound  judgment."  His  wife, 
who  was  Jemima  Leavitt,  of  the  neighboring  village 
of  Suffield,  is  rather  formidably  described  as  "  a  lady  of 
excellent  mind,  good  character,  and  pious  principles." 2 
Surviving  him,  she  was  married  again,  at  the  age  of 
sixty-three,  to  a  wealthy  citizen  of  East  Windsor.3 

The  highest  and  stateliest  of  all  the  monuments  in 
the  Ellsworth  family  group,  rising  up  from  the  rear  of 

strange  mistake  to  make,  it  must  be  admitted,  and  a  stranger  still  not  to 
have  corrected.  Oliver  Ellsworth,  Jr.,  a  son  of  the  Chief  Justice,  refers, 
in  a  Ms.  that  is  still  preserved,  to  "Jonathan,  my  father's  grandfather." 

1  Stiles's  "Ancient  Windsor,"  II,  210-211;  Ms.  notes  in  the  collection 
of  Mr.  W.  Irving  Vinal. 

2  Ms.  of  Oliver  Ellsworth,  Jr. 

3  Stiles's  "Ancient  Windsor,"  II,  212. 


12  OLIVER   ELLSWORTH 

the  pleasant  little  burial-ground  behind  the  old  First 
Church,  and  overlooking  the  little  river,  marks  the 
grave  of  Oliver,  the  second  son  and  second  child  of 
Captain  David  and  his  wife  Jemima.  He  was  born 
on  April  29,  1745,  and  belongs,  therefore,  to  the 
generation  that  came  to  its  prime  about  the  begin 
ning  of  the  War  of  Independence. 

It  is  necessary  to  be  brief  with  his  childhood  and 
boyhood,  for  little  or  nothing  is  known  of  his  life  in 
this  early  period.  A  farmer's  boy  in  a  provincial 
country  town,  he  was  doubtless  accustomed  to  frugal 
fare,  simple  amusements,  and  hard,  wholesome  tasks.1 
Beyond  question,  he  was  made  familiar  from  his  child 
hood  with  the  doctrine  and  observance  of  the  Congre 
gational  Church — the  established  church  of  the  colony. 
Since  Connecticut  from  a  very  early  period  had  main 
tained  an  excellent  school  system,  supported  by  taxa 
tion,  and  Windsor  was  an  old  town  of  considerable 
wealth,  it  is  also  reasonably  certain  that  his  early 
schooling  was  as  good  as  could  be  had  anywhere  in 
the  colonies.  But  what  sort  of  a  pupil  he  was,  or  in 
deed  what  sort  of  a  boy  he  was,  we  do  not  know. 
One  fact,  however,  may  be  taken  to  indicate  that  he 
was  thought  a  boy  of  promise.  His  father  early  set 
about  to  prepare  him  for  the  ministry ;  and  in  colonial 
New  England  the  ministry  ranked  so  high  among  the 
professions  that  only  a  boy  of  promise  would  be  brought 
up  to  aspire  to  it.  With  that  career  in  view,  he  was 
sent  to  the  Rev.  Dr.  Joseph  Bellamy  of  Bethlem,  a 

1  He  told  his  son  that  when  he  was  a  boy  there  was  but  one  carriage  in 
Windsor,  and  most  people  ate  their  food  from  wooden  trenchers ;  that  the 
life  was  hard,  and  manners  simple  to  coarseness.  Ms.  of  Oliver  Ells 
worth,  Jr. 


A   COLONIAL   BOYHOOD   AND   YOUNG   MANHOOD      13 

friend  of  Jonathan  Edwards,  famous  as  a  preacher 
throughout  New  England,  and  known  by  his  writings 
even  in  England  and  Scotland.  Dr.  Bellamy  pre 
pared  the  boy  for  college,  and  in  1762,  at  the  age  of 
seventeen,  he  entered  Yale. 

But  it  was  twenty-nine  years  before  he  got  a  Yale 
degree,  and  then  it  came  to  him,  not  as  in  course,  but 
honoris  causa.  He  remained  at  New  Haven  only  to 
the  end  of  his  sophomore  year ;  and  there  is  reason  to 
believe  that  either  he  or  the  authorities  of  the  college, 
and  not  improbably  both,  would  have  been  better 
pleased  to  close  the  connection  even  sooner.  He 
entered,  it  seems,  at  a  time  of  undergraduate  discon 
tents,  such  as  all  colleges  now  and  then  have  to  weather. 
The  long  administration  of  President  Thomas  Clap  wras 
drawing  to  a  close,  and  his  headship  of  the  still  strug 
gling  seminary,  though  admirable  for  vigor  and  devo 
tion,  had  been  growing  too  arbitrary  to  please  the 
student  body.  There  was  much  complaint  also  of 
the  tutors ;  and  it  is  hardly  necessary  to  add  that  the 
students  held  the  immemorial  undergraduate  convic 
tion  concerning  the  food  which  was  served  to  them  in 
the  college  commons,  and  that  they  did  not  forbear, 
when  occasion  offered,  to  make  their  disapproval 
known.  It  must  be  confessed  that  even  a  moderate 
epicure  could  have  found  a  trifle  to  criticise,  now  and 
then,  in  the  college  fare.  According  to  a  set  of  regu 
lations  in  force  about  this  time,  breakfast  for  four  was 
one  loaf  of  bread.  Dinner  was  more  substantial ;  but 
supper,  also  for  four,  was  an  apple  pie  and  one  quart 
of  beer.1  If  young  Ellsworth  had  made  a  request  for- 

1  F.  B.  Dexter,  "Yale  Biographies  and  Annals,"  2d  series,  141.  Daniel 
Butler  on  the  Yale  Commons,  in  Kingsley's  "  Yale  College,"  I,  297-306. 


14  OLIVER   ELLSWORTH 

ever  associated  with  his  Christian  name,  he  would 
doubtless  have  won  distinction  earlier  than  he  did. 

The  intellectual  fare  was,  it  would  seem,  neither 
more  abundant  nor  more  tempting.  At  Yale,  as 
indeed  at  all  the  colonial  colleges,  the  curriculum 
was  a  hard  and  fast  and  uniform  programme.  "In 
the  first  year,"  so  the  laws  read,  "  They  Shall  princi 
pally  study  the  Tongues  and  Logic,  and  Shall  in 
Some  measure  pursue  the  study  of  the  Tongues  the 
Two  next  Years.  In  the  second  year  they  shall 
Recite  Rhetoric,  Geometry  and  Geography.  In  the 
Third  year,  Natural  Philosophy,  Astronomy  and  Other 
Parts  of  the  Mathematicks.  In  the  Fourth  Year 
Metaphysics  and  Ethics.  .  .  .  But  every  Saturday 
shall  Especially  be  allotted  to  Divinity." l  It  was  use 
less  to  ask  for  more,  or  for  any  variation  in  the  pro 
gramme.  The  teaching  force  was  too  small  to  give 
well  even  what  was  offered.  Each  of  the  two  or  three 
tutors  was  responsible  for  all  the  instruction,  in  all 
branches,  that  was  given  to  the  class  or  section  under 
his  especial  care. 

The  year  before  Ellsworth  entered,  there  had  been 
so  much  disorder  that  a  petition,  prepared,  no  doubt, 
by  enemies  of  President  Clap,  had  been  presented  to 
the  General  Assembly  of  the  colony,  asking  an  investi 
gation.  "  There  has  been  a  tumult,"  a  trustee  wrote, 
"  the  Desk  pulled  down,  the  Bell  case  broken,  and  the 
bell  ringing  in  the  night,  Mr.  Boardman  the  tutor 
beaten  with  Clubbs"2 — which  was  clearly  contrary  to 
rule,  for  Penal  Law  No.  19  expressly  provided:  "If 
any  Scholar  shall  make  an  assault  upon  the  Person  of 

1  Laws  of  Yale  College,  1745. 

2  Dexter,  "  Yale  Biographies  and  Annals,"  2d  series,  682. 


A   COLONIAL   BOYHOOD   AND   YOUNG   MANHOOD      15 

ye  President  or  either  of  the  Tutors  or  shall  wound, 
Bruise  or  Strike  any  of  Them,  He  shall  forthwith  be 
Expelled."  Similar  disorders  arose  from  time  to  time 
until,  in  1765-1766,  the  climax  came  in  a  practically 
unanimous  signed  petition  of  the  students  for  the 
removal  of  President  Clap.  During  the  last  term  of 
that  year,  not  more  than  two-thirds  of  the  student 
body  was  in  attendance.  It  is  not  surprising,  when 
one  remembers  that  this  was  the  time  of  the  struggle 
over  the  Stamp  Act,  to  find  the  state  of  affairs  in  the 
college  attributed  to  the  spirit  of  resistance  to  arbi 
trary  rule  which  was  rising  throughout  the  colonies. 
General  Gage,  at  Boston,  referred  to  Yale  in  1765  as 
a  "  Seminary  of  Democracy." 1  Young  Roswell  Grant, 
of  the  class  of  1 765,  wrote  home  to  his  father  at  Windsor 
that  he  would  be  very  glad  of  a  cheese,  but  added: 
"  Shall  not  want  that  Cherry  (Sherry)  you  reserved  for 
me  before  vacancy,  as  all  the  Scholars  have  unani 
mously  agreed  not  to  drink  any  foreign  spirituous 
liquors  any  more."2  It  is  clear  that  undergraduate 
Yale  was  at  least  as  patriotic  as  it  was  rebellious. 

Ellsworth's  share  in  these  activities,  patriotic  and 
rebellious,  cannot  now  be  ascertained.  He  appears, 
however,  in  at  least  two  cases  of  discipline  on  the 
records  of  the  faculty.3  His  prime  offence  in  the  first 
case,  in  July,  1763,  was  the  puzzling  misdemeanor  of 
joining  with  ten  others,  in  the  evening,  "  to  scrape  and 
clean  the  college  yard  " ;  but  a  second  count  arraigned 
him  and  his  comrades  for  "having  a  treat  or  enter 
tainment  last  winter,"  and  still  a  third  count  set  forth 

1  Dexter,  "Yale  Biographies  and  Annals,"  3d  series,  170.        2  Ibid.,  94. 
3  Transcripts  from  the  Faculty  Records,  which  were  kindly  made  for  me 
by  Professor  Dexter. 


1 6  OLIVER   ELLSWORTH 

that  he  and  three  others  "presently  after  evening 
Prayers  on  Thursday  last  put  on  their  Hats  and  run 
and  Hallooed  in  the  College  Yard  in  contempt  of  the 
Law  of  College."  For  these  offences  he  was  fined  one 
shilling.  The  second  case  arose  the  next  year,  and  the 
charge  was  that  Ellsworth  was  present  "at  Bulkley 
2d's,"  at  "  a  general  treat  or  compotation  of  wine  both 
common  and  spiced  in  and  by  the  sophomore  class," 
and  the  punishment  was  a  fine  of  four  shillings.  There 
were  degrees  of  guilt,  for  two  ringleaders  were  fined 
five  shillings,  and  Ellsworth  and  two  others  four  shil 
lings,  while  the  majority  of  the  offenders  were  let  off 
at  two  shillings.  These  performances  do  not  strike 
one  as  very  damning.  They  do,  however,  seem  to 
prove  that  Ellsworth  was  once  a  boy,  and  that  the 
boys  of  colonial  New  England  were  not  entirely  un 
like  their  descendants  —  at  least,  when  they  went  to 
college.  Perhaps  we  may  also  infer  that  Ellsworth 
was  already  out  of  sympathy  with  his  father's  ambition 
that  he  should  be  a  minister. 

Why  he  left  Yale  is  not  entirely  clear.  Presi 
dent  Clap  entered  in  his  official  journal,  under  the  date 
July  27,  1764,  that  "Oliver  Ellsworth  and  Waight- 
still  Avery,  at  the  desire  of  their  respective  parents, 
were  dismissed  from  being  members  of  this  College." ] 
But  among  the  descendants  of  Ellsworth  at  least  two 
other  stories  are  told  to  account  for  his  departure  from 
New  Haven.  One  is,  that  at  midnight  in  midwinter 
he  inverted  the  college  bell  and  filled  it  with  water, 
which  promptly  froze.2  But  this  explanation  hardly 

1  Entry  copied  by  Professor  Dexter. 

2  H.  C.  Lodge,  oration  on  Ellsworth,  in  «  A  Fighting  Frigate  and  Other 
Essays,"  70,  note. 


A   COLONIAL  BOYHOOD   AND   YOUNG   MANHOOD      17 

consists  with  the  date  of  his  dismissal.  Unfortunately 
for  the  other  story,  it  has  been  told  of  more  than  one 
celebrity,  and  of  other  colleges  than  Yale.  It  is  that 
Ellsworth  was  caught  by  a  college  officer  giving  in  his 
room  what  in  his  day  was  called  a  "  treat "  but  in  the 
college  nomenclature  of  the  present  day  would  be 
called  a  "  spread  " ;  and  that  the  officer,  about  to  enter 
and  disperse  the  company,  was  stopped  by  hearing 
Ellsworth's  voice  uplifted  in  prayer  —  for  there  was  a 
college  law  that  no  student  should  be  interrupted  at 
his  devotions.1  Of  this  story  there  is  a  second  version 
which,  even  if  it  were  never  told  of  any  one  but  Ells 
worth,  sounds  too  modern  for  belief.  It  is  that  the  officer 
was  making  a  round  of  the  dormitory  in  search  of  signs 
which  the  students  had  stolen  from  New  Haven  trades 
men,  and  that  the  words  of  the  prayer  he  heard  were 
the  words  of  Matthew  xii.  39.* 

For  Ellsworth's  career  at  Princeton,  tradition  is 
almost  the  only  source ;  the  written  records  of  the 
immediate  government  of  the  College  of  New  Jersey 
in  colonial  times  are  not  preserved.3  Younger  than 
either  Yale  or  Harvard,  Princeton  was  also  smaller. 
There  can  hardly  have  been  a  hundred  students  when 
Ellsworth  entered.  Age  and  size  apart,  it  differed 
from  the  other  two  mainly  by  a  stronger  infusion  of 
Calvinism  in  its  theology  and  of  Scotch  and  Scotch- 
Irish  blood  in  its  membership.  John  Witherspoon 

1  Letter  from  Mrs.  Alice  L.  Wyckoff,  of  Buffalo,  N.Y. 

2  Letter  from  Mrs.  Geneve  (Ellsworth)  Stuart,  a  great-granddaughter 
of  Ellsworth. 

3  For  Princeton  at  this  time  see  MacLean's  "  College  of  New  Jersey  " ;  De 
Witt  and  Williams,  in  "  Universities  and  their  Sons  "  ;  De  Witt  and  Wilson, 
in  "  Memorial  Book  of  the  Sesquicentennial  Celebration  of  Princeton  Uni 
versity  " ;  Gaillard  Hunt's  "  Madison,"  I,  Chap.  II,  etc. 


1 8  OLIVER   ELLSWORTH 

had  not  yet  consented  to  come  over  from  Scotland  and 
head  the  institution,  but  President  Samuel  Finley 
(1761-1766)  was  a  Scotch- Irish  Presbyterian  minister, 
with  a  great  reputation  in  the  middle  colonies  and 
Virginia. 

In  respect  of  the  curriculum  and  the  number  of 
teachers,  Princeton  offered  to  young  Ellsworth  no 
more  than  Yale  had  offered ;  but  it  was,  apparently, 
rather  more  fortunate  in  its  tutors,  and  in  the  spirit 
that  informed  both  the  teachers  and  the  taught.  The 
arts  of  speaking  and  writing,  in  particular,  appear  to 
have  been  taught  uncommonly  well  and  studied  with 
extraordinary  enthusiasm.  It  is  certain  that  of  all  the 
colonial  colleges,  Harvard  and  William  and  Mary  not 
excepted,  no  other  was  at  this  time  training  so  many 
debaters  for  the  Continental  Congress  and  the  still  un 
dreamed-of  Constitutional  Convention.1  Waightstill 
Avery,  Ellsworth's  companion  in  migration,  had  before 
him  a  good  career  in  public  life  in  North  Carolina.  In 
the  class  which  they  joined,  numbering  but  thirty-one, 
and  a  large  class  for  Princeton,  were  Luther  Martin 
of  Maryland  and  at  least  three  others  with  parts  to 
play  in  the  coming  political  changes.  William  Pater- 
son,  graduated  the  year  before,  was  living  in  the  village 
and  in  constant  association  with  his  younger  mates. 
Benjamin  Rush,  John  Henry,  Tapping  Reeve,  Hugh 
Henry  Brackenridge,  Philip  Freneau,  Henry  Lee, 
Pierpont  Edwards,  Gunning  Bedford,  James  Madison, 
and  Aaron  Burr  were  all  in  classes  close  before  or  after 
Ellsworth's  class  of  1 766.  Of  those  students  who  were 
not,  as  the  event  proved,  in  training  for  statesmanship, 

1  Woodrow  Wilson,  in  "Memorial  Book  of  Princeton  Sesquicentennial 
Celebration,"  110-114. 


A   COLONIAL  BOYHOOD   AND   YOUNG   MANHOOD     19 

fully  half  were  preparing  for  the  ministry.  It  is  no 
wonder  that  courses  in  oratory  and  composition  were 
popular,  or  that  the  Stamp  Act  controversy  aroused  at 
Princeton  even  more  discussion  than  at  Yale.1 

Tradition  and  reminiscence  indicate  that  Ellsworth 
entered  with  zest  into  the  somewhat  fervid  life  of  his 
new  academic  home.  A  respectable  scholar,  he  was, 
we  are  told,  remarkably  successful  in  college  politics, 
displaying  an  uncommon  shrewdness,  a  gift  of  man 
agement,  and  a  talent  for  debate.2  The  best-known 
story  of  his  Princeton  days  is  of  how  he  circumvented 
a  rule  forbidding  students  to  wear  their  hats  in  the 
college  yard.  Arraigned  for  breaking  the  rule,  he 
pointed  out  that  a  hat,  to  be  a  hat,  must  consist  of  a 
crown  and  a  brim,  and  proved  that  the  head-piece  he 
had  worn  in  the  yard  was  without  a  brim  —  as  he  had 
in  fact  torn  off  that  essential  portion  of  it.3  A  better- 
authenticated  and  more  important  tradition  indicates 
clearly  enough  what  the  young  fellow's  tastes  and 
powers  were.  There  seems  to  be  little  doubt  that  he 
was  one  of  the  founders  of  the  Well  Meaning  Club, 
a  debating  club,  which  was  suppressed  in  1768,  but 
later  revived  and  reorganized  as  the  Cliosophic  Society. 
Another  club,  formed  about  the  same  time,  first  called 
the  Plain  Speaking  Club,  and  likewise  suppressed  in 
1768,  was  reorganized  by  Madison,  John  Henry,  and 
Samuel  Stanhope  Smith,  and  named  the  American 
Whig  Society.4  Among  the  college  debating  clubs 

1  "  Twenty-two  commence  this  fall,  all  of  them  in  American  Cloth." 
Madison  to  his  father,  Gaillard  Hunt's  "  Madison's  Writings,"  I,  7. 

2  Wood  and  Jackson  Mss. 

3  Ibid. ;  University  Magazine,  November,  1891. 

4  Hunt's  "Madison,"  15;  De  Witt  and  Williams,  in  "Universities  and 
their  Sons,"  I,  482-484;  McLean,  "College  of  New  Jersey,"  I,  364. 


20  OLIVER   ELLSWORTH 

throughout  the  country,  these  two  Princeton  societies 
hold  at  present  the  first  rank  for  age,  for  celebrity,  and 
for  the  names  on  their  rolls  of  membership.  It  seems 
most  likely  that  Paterson,  who  was  fond  of  such 
activities,  and  precisely  the  sort  of  man  to  lead  in 
them,  was  the  moving  spirit  when  Clio  was  founded  ; 
but  with  his  name  tradition  has  firmly  associated 
Ellsworth's,  Luther  Martin's,  and  Tapping  Reeve's.1 
There  is  scarcely  to  be  found  even  in  the  records  of 
the  Oxford  Union  a  coincidence  more  curiously  pro 
phetic.  We  are  told,  also,  that  both  these  clubs  were 
mightily  concerned  about  the  Stamp  Act  and  the 
relations  of  the  colonies  to  the  mother  country.  It  is 
true  that  New  Jersey  and  the  other  central  colonies 
contributed  less  leadership  to  the  American  movement 
than  New  England  or  Virginia ;  but  Princeton  already 
drew  her  students  from  surprising  distances.  The 
acquaintances  Ellsworth  made  there,  and  the  outlook 
he  gained,  were  doubtless  a  better  introduction  to  the 
whole  field  of  colonial  politics  than  he  could  have 
got  at  any  other  college.  He  seems  to  have  formed 
there  the  habit  of  caution  and  to  have  developed  the 
instinct  for  compromise  which  were  later  conspicuous 
characteristics.  At  any  rate,  he  had  got  what  few  but 
the  wealthiest  young  colonials  could  have  —  an  educa 
tion  a  long  way  from  home. 

When  he  went  back  to  Connecticut,  however,  his 
father  had  not  relinquished  the  plan  of  making  him 

*De  Witt  and  Williams,  in  "Universities  and  their  Sons";  J.  A. 
Porter,  in  Century  Magazine,  September,  1888.  For  Paterson,  W.  Jay  Mills, 
"Glimpses  of  Colonial  Society  and  the  Life  at  Princeton  College"  (made 
up  chiefly  of  Paterson's  letters).  The  corresponding  secretary  of  the 
Cliosophic  Society  states  that  there  is  no  record  of  Ellsworth's  connection 
with  the  society  now  in  its  possession. 


A   COLONIAL  BOYHOOD   AND   YOUNG   MANHOOD     21 

a  minister.  He  accordingly  spent  the  next  year  in 
the  study  of  theology  under  Dr.  John  Smalley  of 
New  Britain,  a  young  clergyman  of  parts,  who  rose 
to  influence  and  distinction.1  But  Ellsworth  had  by 
this  time  a  clear  and  strong  bent  towards  the  law. 
When  Dr.  Smalley  directed  him  to  prepare  his  first 
sermon,  the  first  ten  sheets  of  his  manuscript  were 
given  over  to  careful  definition  of  his  terms.2  His 
teacher  and  his  father  were  at  length  persuaded  that 
his  mind  and  tastes  were  better  suited  to  the  bar 
than  to  the  pulpit. 

It  was  four  years,  however,  before  he  was  admitted 
to  the  bar;  and  for  those  four  years,  from  1767  to 
1771,  the  record  of  his  life  is  very  scant.  He  studied 
law  under  the  first  Governor  Griswold  and  under 
Jesse  Root  of  Coventry,  a  young  attorney  with  whom 
he  was  later  associated  in  the  Continental  Congress, 
and  whose  name  appears  many  times  in  the  public 
records  of  Connecticut.  But  Ellsworth  can  hardly 
have  given  the  whole  of  the  four  years  to  his  studies. 
In  one  account  of  his  life,  it  is  stated  that  he  taught 
school  for  a  little  while3  —  an  experience  curiously 
common  in  the  lives  of  eminent  Americans.  When  he 
began  practice  as  a  lawyer,  he  was  in  debt,  and  a 
rational  inference  is  that  after  he  abandoned  theology 
his  father  made  no  further  expenditures  for  his 
education. 

In  any  case,  however,  his  education  in  the  law  could 

1  J.  Hammond  Trumbull,  "Memorial  History  of  Hartford  County,"  II, 
309-310. 

2  "  Centennial  Papers  of  the  General  Conference  of  Connecticut "  (1876), 
107-108. 

3  Longacre  and  Herring,  "National  Portrait  Gallery"  (1839),  IV>  article 
on  Ellsworth. 


22  OLIVER   ELLSWORTH 

not  have  been  elaborate.  There  were  no  law  schools 
in  the  colonies.  The  people  of  Connecticut  were 
thought  to  be  peculiarly  and  perversely  litigious,  but 
the  Commentaries  of  Blackstone  were  still  unknown 
among  them.  The  first  American  edition  of  the  work 
was  printed  in  1771  or  1772,  and  a  copy  with  Ells 
worth's  name  and  the  date  1774  on  the  fly-leaf  is  still 
in  existence ; 1  one  conjectures  that  he  never  possessed 
the  book,  probably  never  even  saw  it,  until  he  had  been 
several  years  in  practice.  His  text-books  were  Ba 
con's  " Abridgment "  and  Jacob's  "Law  Dictionary."2 
In  fact,  there  were  no  text-books,  properly  so-called. 
It  may  be  added  that  until  very  near  the  time  when 
he  began  to  practise  there  was  considerable  opposition 
to  the  common  law  in  Connecticut.3  The  colony 
had  begun  its  legislative  history  with  what  looks  like 
a  complete  disavowal  and  rejection  of  the  system.  It 
was  never  adopted  by  statute,  but  came  in  gradually 
by  a  change  ofr  usage  on  the  bench  and  at  the  bar, 
as  professionally  trained  practitioners  became  more 
numerous.  Even  when  the  decisions  of  the  English 
judges  were  familiarly  cited  in  the  Connecticut  courts, 
the  means  of  studying  them  were  scant  and  crude. 
Good  law  libraries  were  extremely  rare,  and  the  labors 
of  the  colonial  lawyer  were  not  made  easy  by  treatises 
and  digests.  It  is  altogether  improbable  that  Ells 
worth  possessed,  at  the  outset  of  his  professional 
career,  any  such  store  of  facts  or  principles  as  would 
now  be  required  of  him  in  an  examination  for  admis- 

1  William  Bliss,  in  New  York  Evening  Post,  April  9,  1875. 

2  Wood  Ms. 

8  Analectic  Magazine,  III,  382  ;  "Judicial  and  Civil  History  of  Connec 
ticut,"  by  Loomis  and  Calhoun,  pp.  176-177;  Preface  to  Kirby's  Connecti 
cut  Reports ;  Wood  Ms.,  etc. 


A   COLONIAL   BOYHOOD   AND   YOUNG   MANHOOD      23 

sion  to  the  bar  of  any  New  England  state.  Yet  the 
way  he  did  learn  the  law  was  not  unlike  the  method 
of  studying  and  teaching  it  which  has  come  of  late 
into  a  very  wide  acceptance.  He  mastered  it  only  by 
searching  out  and  storing  in  his  mind  the  principles 
at  the  heart  of  particular  cases.  In  that  process  is 
involved  the  essence  of  the  modern  case-system.  It 
is  doubtful  if  a  better  training  for  the  reason  has  ever 
been  devised. 

But  even  the  opportunity  to  learn  law  in  this  way 
was  for  a  time  withheld.  Cases  to  study  and  to  try 
were  not  immediately  forthcoming.  Ellsworth  had 
first  to  undergo  a  discipline  in  patience  and  frugality 
which  seems  to  have  been  severe  enough  to  make 
his  professional  career  in  all  respects  representative. 
Somebody  has  said  that  poverty  and  an  early  marriage 
make  the  best  beginning  of  a  lawyer's  life ;  and  both 
were  in  his  portion.  To  pay  the  debts  incurred  while 
he  was  preparing  for  the  bar,  he  had  but  one  resource 
—  a  tract  of  woodland  on  the  Connecticut  which  had 
come  to  him  by  inheritance  or  gift.1  He  tried  in  vain 
to  sell  the  land,  and  then,  shouldering  an  axe,  attacked 
the  timber,  for  which  there  was  a  market  at  Hartford. 
In  this  way  he  cleared  himself  of  debt.  But  for  three 
years  after  his  admission  to  the  bar  his  professional 
earnings,  by  his  own  account,  were  but  three  pounds, 
Connecticut  currency.  And  yet,  in  1772,  a  year  after 
his  admission,  he  was  married. 

His  bride  was  Abigail,  the  second  daughter  of  Mr. 
William  Wolcott  of  East  Windsor,  a  gentleman  of 
substance  and  distinction,  and  a  member  of  that  same 

1  Wood  Ms. ;  Henry  Flanders,  u  Lives  and  Times  of  the  Chief  Justices 
of  the  Supreme  Court,"  2d  series,  59-60. 


24  OLIVER   ELLSWORTH 

Wolcott  family  which  had  held  so  high  a  place  in 
the  community  from  the  very  beginning.  A  story  is 
told,  that  when  Ellsworth  made  his  first  visit  to  the 
Wolcott  house  he  called  for  an  elder  sister,  but  that 
the  black  eyes  of  Abigail,  who  sat  demurely  carding 
tow  in  the  chimney  corner,  made  him  change  his  mind, 
and  the  next  time  he  went  there  he  called  for  her. 
She  was  only  sixteen  at  her  marriage.1  A  portrait 
that  we  have  of  her,  painted  when  she  was  in  middle 
life,  suggests  rather  the  good  and  cheerful  housewife 
than  the  sort  of  colonial  beauty  whom  colonial  dames 
are  now  so  fond  of  celebrating.  But  the  tradition  is 
that  she  was  a  beauty,  and  one  or  two  anecdotes 
present  her  to  posterity  as  an  uncommonly  loving  and 
lovable  woman.  Unrelaxing  in  industry,  she  was 
given  to  charity,  and  had  an  unfailing  kindness  for  all 
about  her.  That  a  briefless  young  lawyer  should  win, 
apparently  without  objection  from  her  family,  the 
daughter  of  so  respectable  a  house,  is  evidence  of  the 
wholesome  democracy  in  which  they  lived.  It  is 
evidence,  too,  of  the  sincerity  of  their  affection  for  each 
other.  That,  happily,  was  strong  enough  to  last 
through  all  their  lives.  The  biographer  of  Ellsworth 
is  often  tempted  to  complain  of  the  scarcity  of  purely 
personal  details ;  but  he  is  happily  spared  the  tempta 
tion  to  stimulate  the  interest  of  his  readers  with  any 
parade  of  family  skeletons.  In  all  that  pertained  to 
his  family  and  his  home,  Ellsworth  was  both  wise  and 
fortunate. 

The  two  began  life  on  a  farm  which  belonged  to 
Ellsworth's  father,  and  which  the  son  now  took  over 

1  Jabez  H.  Hayden,  in  "Memorial  History  of  Hartford  County,"  II, 
565. 


A   COLONIAL   BOYHOOD  AND   YOUNG   MANHOOD     25 

to  cultivate,  either,  it  seems,  on  shares,  or  on  a  lease 
for  rent.1  It  lay  in  the  northwest  part  of  old  Windsor, 
which  was  then  called  Wintonbury,  and  is  now  called 
Bloomfield.  The  land  was  unfenced,  and  Ellsworth 
with  his  own  hands  cut  and  split  the  rails  and  built  a 
fence  about  it.  Too  poor  to  hire  a  servant,  he  did 
himself  all  the  heavier  household  chores,  and  twice  a 
day  when  court  was  in  session  he  walked  the  ten  miles 
between  his  farm  and  his  office  in  Hartford.  Once, 
when  a  wealthier  neighbor  passed  him  in  a  carriage 
and  told  him  that  a  man  in  his  position  ought  to  be 
riding  and  not  walking,  Ellsworth  cheerfully  replied 
that  everybody  must  walk  some  time  or  other  in  his 
life,  and  that  he  for  his  part  preferred  to  do  his  walk 
ing  while  he  was  young  and  strong.  Of  course  we 
are  also  told,  for  a  climax  to  the  story,  that  a  time 
came  later  when  Ellsworth  kept  a  carriage  and  his 
neighbor  had  to  walk.2 

The  farm,  rather  than  the  pound  a  year  he  earned 
at  his  profession,  must  have  been  the  young  man's 
main  support  during  the  year  or  two  longer  that  he 
had  to  wait  for  his  first  important  case.  He  became 
an  intelligent  and  zealous  farmer ;  that  is  more  than 
conjecture.  But  neither  this  nor  his  study  of  the  law 
can  be  reckoned  his  principal  achievement  between 
his  college  days  and  that  success  which  was  soon  to 
be  his  portion.  Scanty  as  the  record  of  those  years  is, 
we  know  that  they  covered  a  very  fine  and  admirable 
study  and  development  of  his  powers,  for  when  Ells 
worth  first  came  fully  into  the  light  his  character  was 
rounded  and  hardened  into  the  best  type  of  colonial 
New  England  manhood.  In  later  life,  he  himself, 

1  Wood  Ms. 


26  OLIVER   ELLSWORTH 

being  asked  for  the  secret  of  his  effectiveness,  told 
modestly  and  convincingly  the  story  of  his  growth. 
Early  in  his  career,  he  said,  he  made  the  discouraging 
discovery  that  he  had  no  imagination,  nor  any  other 
brilliant  quality  of  mind.  Determined,  however,  to 
make  the  most  of  such  powers  as  he  had,  he  resolved 
to  study  but  one  subject  at  a  time,  and  to  stick  to  it 
until  he  mastered  it.  In  the  practice  of  his  profession, 
his  rule  was  to  go  at  once  to  the  main  points  of  a  case 
and  to  give  them  his  entire  attention.1 

In  this  candid  self-examination,  this  honest  accept 
ance  of  his  limitations,  this  manly  and  courageous 
decision,  one  finds  enough  to  command  one's  hearty 
respect.  But  it  is  not  to  be  supposed  that  by  this  self- 
study  and  this  plan  of  life  alone  the  reasonably  mis 
chievous  and  reckless  youngster  of  Yale  and  Princeton 
was  at  once  transformed  into  a  cautious  and  hard- 
headed  but  uncommonly  upright  lawyer  and  statesman. 
None  of  Ellsworth's  New  England  contemporaries  was 
more  thoroughly  representative  of  New  England  civili 
zation  at  its  best;  and  colonial  New  England  was 
already  —  Switzerland,  perhaps,  excepted  —  the  sound 
est  democracy  in  the  world.  Nowhere  else  was  liberty 
restrained  by  such  strong  reverences,  or  safeguarded 
by  so  practical  an  instinct,  or  fortified  by  a  morality  so 

1  Flanders,  64-65,  following  Wood  Ms.  Jackson's  version  is  perhaps 
better :  "  To  a  young  lawyer  who  asked  him  for  the  secret  of  his  success 
in  life,  his  reply  was :  i  Sir,  after  I  left  college  I  took  a  deliberate  survey  of 
my  understanding.  I  felt  that  it  was  weak  —  that  I  had  no  imagination  and 
but  little  knowledge  or  culture.  I  then  resolved  on  this  course  of  study : 
to  take  up  but  a  single  subject  at  a  time,  and  to  cling  to  that  with  an  atten 
tion  so  undivided  that  if  a  cannon  were  fired  in  my  ears  I  should  still  cling 
to  my  subject.  That,  sir,  is  all  my  secret.' "  Jackson  had  the  story  from 
John  Allyn,  who  told  it  on  the  authority  of  his  nephew,  Professor  Goodrich 
of  Yale. 


A   COLONIAL   BOYHOOD   AND   YOUNG   MANHOOD     27 

widespread  and  so  thoroughgoing.  New  England 
society,  even  in  its  unspoiled  colonial  state,  had  its 
faults,  and  some  of  its  faults  were  hateful.  The  bit  of 
talk  about  himself  which  I  have  just  given  is,  for  in 
stance,  almost  the  only  frank  and  ingenuous  revelation 
of  his  nature  we  shall  find  in  all  that  Ellsworth  ever 
wrote  and  spoke.  When  he  became  a  man  of  sub 
stance,  it  was  said  that  he  took  the  utmost  pains  to 
conceal  from  his  own  household  the  extent  of  his 
wealth.  Secretiveness  and  unresponsiveness  were 
bound  to  be  common  among  a  people  who  cultivated, 
almost  to  excess,  the  fine  qualities  of  self-reliance  and 
forethought.  We  shall  never  be  acquainted  with  Ells 
worth  or  any  other  colonial  New  Englander  as  we  are 
with  famous  Americans  from  other  quarters,  and  with 
famous  Englishmen  as  well.  Wanting,  as  a  rule,  in 
amiability  and  ready  sympathy,  the  colonial  Yankees 
had  also  more  positive  faults.  Pecksniffs  as  well  as 
Dombeys  there  were  no  doubt  among  them.  Where 
all  were  so  free  to  live  their  individual  lives  according 
to  their  own  ideals,  some  were  surely  selfish  as  well  as 
self-contained.  Where  so  large  a  number  were  reli 
gious,  some  were  doubtless  sanctimonious  and  hypo 
critical. 

But  if  we  judge  them  in  the  mass  it  is  hard  to  match 
them  for  competency  in  the  management  of  their  own 
affairs,  whether  as  individuals  or  in  bodies  politic,  or 
for  fidelity  to  their  difficult  ideals.  By  Ellsworth's 
time,  the  puritan  theology  was  already  relaxed  into  a 
fairly  livable  creed.  Before  he  died,  the  famous 
Unitarian  movement  had  begun  in  Massachusetts. 
A  general  broadening  of  ideas  and  sympathies  accom 
panied  the  religious  change.  Sloughing  off  the  worst 


28  OLIVER   ELLSWORTH 

defects  of  its  quality,  New  England  society  displayed 
during  the  first  half  of  the  nineteenth  century  a  spec 
tacle  of  intelligence,  of  energy,  and  of  general  health- 
fulness  and  soundness,  which  has  probably  never  been 
surpassed. 

Ellsworth,  whatever  vagaries  he  had  indulged  in  his 
boyhood,  took  into  his  nature  and  kept  throughout  his 
life  the  best  characteristics  of  his  kind.  He  came  to 
his  fine  opportunities  a  completely  grown-up  man,  his 
character  hardened  into  permanent  lines ;  a  quiet  but 
ready  man,  thoughtful  and  deeply  religious,  but  also 
ardent,  industrious,  practical,  and  shrewd.  For  the 
rest,  he  had  got  from  his  ancestors  and  his  healthful 
country  life  a  superb  endowment  of  physical  strength 
and  hardiness.  According  to  the  family  tradition,  his 
height  was  six  feet  two,  and  he  was  broad-shouldered 
and  robust.  His  countenance  was  not  positively  hand 
some  ;  if  we  may  judge  from  his  portraits,  until  age 
and  suffering  had  softened  it,  there  was  neither  sweet 
ness  nor  distinction  in  his  face ;  but  he  had  the  strong 
jaws,  the  long  chin,  the  firm  lips,  the  steady  eyes,  which 
always  indicate  the  man  of  purpose  and  persistency. 
To  an  unimaginative  man  like  Ellsworth,  however, 
with  little  of  the  artist  or  the  actor  in  his  nature,  such 
a  figure  and  presence  was  of  far  less  advantage  before 
the  public  than  it  might  have  been  had  his  tempera 
ment  been  different.  He  used  and  valued  his  bodily 
endowment  for  hard  work  rather  than  display.  The 
interest  of  his  life  is  not  to  be  found  in  dramatic  exhi 
bitions  of  his  powers.  It  lies,  rather,  in  the  tasks  which 
his  hand  found  to  do  —  tasks  whose  value  and  impor 
tance  we  cannot  even  yet  feel  sure  that  we  have  meas 
ured.  He  brought  to  his  work  parts  which  cannot  be 


A   COLONIAL  BOYHOOD   AND   YOUNG   MANHOOD     29 

called  extraordinary  in  themselves ;  but  he  plied  them 
with  an  abundant  energy,  he  ruled  them  with  strong 
will,  he  devoted  them  always  to  high  purposes,  and  he 
made  them  serve. 


CHAPTER   II 

THE    BAR    AND   THE    ASSEMBLY 

THE  beginning  of  Ellsworth's  rise  to  eminence  was 
professional  success;  and  this,  when  it  did  come, 
seems  to  have  come  both  swiftly  and  abundantly. 
According  to  his  early  biographers,  a  si'ngle  case,  in 
volving  an  important  legal  principle;  proved  to  be  the 
sort  of  opportunity  that  leads  to  countless  others.  The 
young  lawyer  managed  it  so  skilfully  that  he  not  only 
secured  a  verdict  for  his  client  but  won  for  himself 
the  respect  of  his  neighbors.1  Perhaps  it  was  on  this 
occasion  that  he  heard  from  the  lips  of  a  stranger  what 
he  afterward  declared  were  the  first  words  of  encour 
agement  that  ever  heartened  him  in  his  ambition. 
"  Who  is  that  young  man  ?  "  the  stranger  was  saying ; 
"he  speaks  well."2 

At  any  rate,  from  about  the  third  year  of  his  mem 
bership  of  the  bar,  his  practice  grew  very  fast,  and  he 
rose  quite  as  fast  in  the  esteem  of  his  fellows.  At  the 
autumn  session  of  the  General  Assembly  in  1773,  he 
took  his  seat  as  one  of  the  two  deputies  from  Windsor, 
and  his  name  appears  in  every  list  of  the  deputies 
thereafter  until  May  of  the  year  I775.3  That  year, 

1  Wood  and  Jackson  Mss. ;  George  Van  Santvoord,  "  Sketches  of  the 
Lives  and  Judicial  Services  of  the  Chief  Justices  of  the  Supreme  Court 
of  the  United  States,"  196. 

2  Mrs.   Sigourney,   in    "National    Portrait    Gallery,"    IV,   Article    on 
Ellsworth. 

3  Roll  of  State  Officers  and  General  Assembly  of  Connecticut ;  Colonial 
Records  of  Connecticut,  XIV,  159,  214,  252,  325,  388,  413.    All  the  biogra- 

3° 


THE   BAR  AND   THE   ASSEMBLY  31 

the  year  of  his  thirtieth  birthday,  was  doubtless  to  him, 
as  to  many  another  young  colonial,  the  annus  mirabilis 
of  his  whole  career.  Tradition  has  fixed  upon  it  as 
the  date  of  his  removal  to  Hartford  from  the  Winton- 
bury  farm.  It  also  saw  him  engaged  in  the  first  of 
those  Revolutionary  tasks  which  were  to  claim  him 
continually  until  the  end  of  the  struggle  for  indepen 
dence  should  summon  him  to  a  still  more  conspicuous 
part  in  the  constructive  work  that  followed.  From 
that  year  to  his  death,  in  fact,  he  was  scarcely  for 
an  instant  free  from  important  public  responsibilities. 
But  he  did  not  relinquish  his  profession.  Throughout 
the  Revolution,  and  until  the  new  national  govern 
ment  was  organized  under  the  Constitution,  he  was 
always  either  actively  in  practice  or  else  on  the  bench. 
It  was  by  the  law  that  he  laid  the  foundations  both  of 
his  fortune  and  his  fame.  It  will  be  best,  therefore, 
before  we  follow  him  into  the  service  of  his  country 
men,  to  seek  some  notion  of  the  kind  of  man  he  was  in 
the  common,  daily  struggle,  and  more  particularly  to 
learn  what  we  can  of  his  character  and  figure  at  the 
bar. 

For  this  inquiry,  few  records  are  available,  and  those 
are  of  little  use.  In  the  courts  where  Ellsworth  prac 
tised,  the  stenographer  was  of  course  unknown ;  nor 
did  any  daily  paper  ever  spread  before  its  readers  a 

phers  of  Ellsworth  have  been  extremely  loose  in  their  statements  concerning 
the  offices  he  held  in  the  earlier  part  of  his  career.  Where  dates  are  given, 
they  are  nearly  always  incorrect.  Perhaps  the  official  records  were  not 
accessible  when  these  accounts  were  written.  It  is  hardly  worth  while  to 
specify  their  inaccuracies.  Not  one  of  them  gives  the  impression  that  he 
was  in  the  Assembly  as  early  as  1773.  In  May,  1774,  his  name  first  appears 
in  the  list  of  Justices  of  the  Peace  for  Hartford  County.  Ibid., 
XV,  8. 


32  OLIVER   ELLSWORTH 

detailed  narrative  of  a  single  cause  in  which  he  was 
engaged.  Compared  with  our  present  usage,  the  re 
porting  of  that  day,  both  official  and  unofficial,  was 
bafflingly  meagre.  Moreover,  Ellsworth  himself, 
though  by  no  means  slow  of  speech,  was  curiously 
averse  to  the  pen.  There  can  scarcely  be  another  man 
of  comparable  importance  in  our  history  who  has  left 
behind  him  so  few  papers  of  any  sort  in  his  own  hand 
writing.  Not  one  of  his  court  speeches  is  preserved 
to  us.  It  is  quite  probable  that  none  was  ever  written 
out.  Even  his  briefs  are  said  to  have  been  exception 
ally  condensed,  setting  forth  only  the  principal  head 
ings  of  his  arguments. 

Fortunately,  however,  a  number  of  his  contempo 
raries  have  left  us  their  impressions  of  him  as  an 
advocate;  and  several  of  these  contemporaries  were 
themselves  of  an  eminence  to  give  their  judgments 
weight.  One,  at  least,  is  better  known  to-day  than 
Ellsworth  is ;  his  name  indeed  is  quite  probably  famil 
iar  to  more  English-speaking  people  than  any  other 
American  name  but  Washington's.  In  1779,  young 
Noah  Webster  was  a  student  in  Ellsworth's  office  and 
an  inmate  of  his  home.1  Many  years  later,  one  of  Ells 
worth's  sons  was  married  to  Webster's  eldest  daugh 
ter.  This  personal  connection  may  perhaps  have 
heightened  the  lexicographer's  opinion  of  the  states 
man's  importance,  for  Webster  was  given  to  dilating 
on  all  things  in  any  way  related  to  his  own  career. 
But  he  was  also  trained  to  state  facts  carefully,  and  to 
Joseph  Wood,  Ellsworth's  son-in-law  and  biographer, 
he  once  declared  that  Ellsworth,  even  at  the  time  when 

1  H.  E.  Scudder's  "  Noah  Webster,"  in  American  Men  of  Letters  series  ; 
Goodrich,  in  "Revised  Webster's  Dictionary,"  XV,  XXII. 


THE   BAR   AND   THE   ASSEMBLY  33 

Webster  was  in  his  office,  had  usually  on  his  docket 
from  a  thousand  to  fifteen  hundred  cases.  In  fact, 
Webster  added,  there  was  scarcely  a  case  tried  in 
which  Ellsworth  was  not  of  counsel  on  one  side  or 
the  other,  and  his  mind  was  under  a  constant  strain 
throughout  the  sessions.  Sometimes,  from  sheer  physi 
cal  weariness,  he  would  gird  his  loins  with  a  handker 
chief  as  he  rose  for  an  argument  in  some  new  case. 
Perhaps  the  number  of  his  cases  is  partly  explained  by 
the  statement  that  he  excelled  in  nisi  prius  trials. 
Webster  habitually  spoke  of  him  as  one  of  the  "  three 
mighties"  of  the  Connecticut  bar  —  the  other  two 
being  William  Samuel  Johnson  and  Titus  Hosmer.1 

However  this  testimony  may  need  to  be  qualified, 
it  is  clear  that  Ellsworth's  professional  career  was 
extraordinary.  It  is  doubtful  if  in  the  entire  history 
of  the  Connecticut  bar  any  other  lawyer  has  ever  in 
so  short  a  time  accumulated  so  great  a  practice.  It 
probably  reached  its  height  in  the  years  immediately 
after  the  war,  for  the  great  change  gave  rise  to  much 
litigation,  and  by  that  time  his  reputation  was  estab 
lished  and  his  powers  at  the  full.  Measured  either  by 
the  amount  of  his  business  or  by  his  earnings,  it  was 
unrivalled  in  his  own  day,  and  unexampled  in  the 
history  of  the  colony.  Naturally  shrewd,  and  with 
nothing  of  the  spendthrift  in  his  nature,  he  quickly 
earned  a  competence,  and  by  good  management  he 
increased  it  to  a  fortune  which  for  the  times  and  the 
country  was  quite  uncommonly  large.  From  a  few 
documents  still  in  existence,  it  is  clear  that  he  be 
came  something  of  a  capitalist  and  investor.  He 
bought  land  and  houses,  and  loaned  out  money  at 

1  Wood  Ms. ;  "Memorial  History  of  Hartford  County,"  I,  121. 


34  OLIVER   ELLSWORTH 

interest.  He  was  a  stockholder  in  the  Hartfo/d  Bank 
and  one  of  the  original  subscribers  to  the  stock  of  the 
old  Hartford  Broadcloth  Mill  (i  788).1  But  if  there  were 
no  documents  to  prove  that  he  was  a  man  of  substance, 
the  residence  in  Windsor  which  he  appears  to  have 
either  bought  or  built  long  before  he  reached  the  age 
of  retirement,  and  where  he  made  his  home  in  the 
years  of  his  highest  public  services,  would  be  evidence 
enough. 

Were  this  substantial  progress  and  worldly  prosper 
ity  alone  to  be  considered,  we  should  still  be  sure  that 
Ellsworth  was  a  man  among  men,  surpassing  the  great 
majority  of  his  contemporaries  in  sense  and  energy,  a 
good  representative  of  the  strong  and  sturdy  stock  he 
came  of.  He  was  not  of  those  who,  though  fitted  for 
exceptional  services  or  charged  with  uncommon  tal 
ents,  are  yet  unequal  to  the  world's  incessant  and 
more  commonplace  demands.  But  the  fact  of  his  get 
ting  on  so  well  and  fast  has  its  full  value  to  the  biogra 
pher  only  when  it  is  added  that  not  one  word  has  come 
down  to  us  to  intimate  that  there  was  ever  brought 
against  him  the  slightest  charge  of  trickery  or  over 
reaching,  or  any  intimation  that  as  a  lawyer  he  was 
ever  accused  of  any  practice  at  all  out  of  keeping 
either  with  his  own  personal  dignity  or  the  standards 
of  the  bar.  On  the  contrary,  the  praise  of  his  con 
temporaries  emphasizes  his  integrity  quite  as  often  as 
his  ability. 

As  to  the  kind  and  quality  of  his  excellence  as  a 

1  Inventory  of  his  estate,  made,  doubtless,  very  soon  after  his  death.  A 
copy  of  this  document  was  brought  to  light  after  the  present  work  had  been 
begun.  Ellsworth  papers  in  the  Public  Library  of  the  city  of  New  York ; 
"Memorial  History  of  Hartford  County,"  I,  331,  564. 


THE   BAR   AND   THE   ASSEMBLY  35 

lawyer,  these  attempts  at  portraiture  agree  fairly  well 
among  themselves.  They  seem  also  to  confirm  his 
own  conclusion  that  he  lacked  imagination  ;  but  in 
other  respects  they  by  no  means  sustain  his  extremely 
modest  estimate  of  his  gifts.  Dr.  John  Trumbull,  the 
author  of  "  McFingal,"  who  was  doubtless  the  best  wit  in 
the  colony,  if  not  in  all  the  colonies,  and  hardly  there 
fore  the  sort  of  man  to  grow  enthusiastic  over  a  dis 
play  of  mere  unillumined  energy  in  oratory,  and  who 
was  himself  a  lawyer  and  a  judge,  has  left  a  good 
comparison  between  the  two  foremost  advocates  of  the 
Hartford  bar.  "  When  Dr.  Johnson  rose  to  address 
a  jury,"  he  writes,  "  the  polish  and  beauty  of  his  style,  his 
smooth  and  easy  flow  of  words,  the  sweet,  melodious 
voice,  accompanied  with  a  grace  and  elegance  of  person 
and  manners,  delighted  and  charmed  his  hearers.  But 
when  Judge  Ellsworth  rose,  the  Jury  soon  began  to 
drop  their  heads,  and  winking,  looked  up  through 
their  eyebrows,  while  the  thunders  of  his  eloquence 
seemed  to  drive  every  idea  into  their  skulls  in  spite 
of  them."1  Johnson,  though  now  but  little  known, 
was  no  mean  figure  to  be  thus  put  forward  first  in 
order  to  a  climacteric  contrast.  The  son  of  the  first 
president  of  King's  College,  and  himself  the  holder 
of  degrees  from  Yale,  Harvard,  and  Oxford,  he  had 
enjoyed  and  profited  by  still  another  opportunity  for 
acquiring  culture  ;  for  he  had  represented  Connecticut 
several  years  at  court.  It  is  said  that  while  he  lived 
in  London  he  was  admitted  to  that  remarkable  circle 
which  gathered  round  another  and  more  famous  Dr. 
Samuel  Johnson,  and  won  for  himself  the  great  man's 
distinguished  approval.  Active  in  the  Stamp  Act 

1  Flanders,  67. 


36  OLIVER   ELLSWORTH 

Congress,  and  throughout  that  phase  of  the  colonies' 
resistance,  he  was  perhaps  the  foremost  man  in  Con 
necticut  until  his  unwillingness  to  go  the  lengths  of  an 
attempt  at  complete  independence  left  him  a  few 
years  in  retirement.  His  work  in  the  constructive 
period  after  the  war  was  second  only  to  Roger 
Sherman's  and  Ellsworth's.1 

To  the  less  restrained  of  his  and  Ellsworth's  eulo 
gists,  he  appeared  always  as  the  Cicero  to  the  other's 
Demosthenes.  It  is  more  important  to  be  sure  of  the 
real  sources  of  the  strength  of  a  public  character  than 
to  point  out  his  limitations.  Stilted,  therefore,  as  this 
praise  of  the  two  colonial  lawyers  may  be,  we  need 
not  reject  the  reasonable  inference  that  Johnson  was 
a  remarkably  pleasing  and  accomplished  public  speaker, 
and  that  Ellsworth  excelled  in  a  style  of  oratory  that  was 
unadorned,  headlong,  and  compelling.  Dr.  Timothy 
Dwight,  sometime  president  of  Yale,  who  tells  us  that 
Ellsworth  was  his  "particular  friend,"  described  his 
oratory  in  these  words :  "  His  eloquence,  and  indeed 
almost  every  other  part  of  his  character,  was  peculiar. 
Always  possessed  of  his  own  scheme  of  thought  con 
cerning  every  subject  which  he  discussed,  ardent,  bold, 
intense,  and  masterly,  his  conceptions  were  just  and 
great ;  his  reasonings  invincible ;  his  images  glowing ; 
his  sentiments  noble ;  his  phraseology  remarkable  for 
its  clearness  and  precision ;  his  style  concise  and  strong ; 
and  his  utterance  vehement  and  overwhelming.  Uni 
versally,  his  eloquence  strongly  resembled  that  of 
Demosthenes;  grave,  forcible,  and  inclined  to  sever 
ity."  Elsewhere,  the  same  authority  describes  him  as 

1  "  William  Samuel  Johnson  and  the  Making  of  the  Constitution,"  by 
W.  G.  Andrews ;  E.  E.  Beardsley's  "  Life  and  Times  of  Johnson." 


THE   BAR  AND   THE  ASSEMBLY  37 

in  his  addresses  to  the  jury  "frequently  pouring  out 
floods  of  eloquence  which  were  irresistible  and  over 
whelming."1  To  this,  quoted  by  Wood,  an  unknown 
marginal  commentator  on  Wood's  Ms.  makes  answer, 
"  Dwight  must  have  drawn  on  his  imagination,  for 
Ellsworth  was  by  no  means  an  eloquent  speaker." 
But  Wood  rejoins,  "  Dwight  was  not  mistaken,  as 
can  be  abundantly  shown." 

Fortunately,  however,  there  is  at  least  one  charac 
terization  of  the  man  and  the  advocate,  drawn  from 
contemporary  sources,  which  is  convincingly  discrimi 
nating  and  restrained.  A  few  years  after  the  death 
of  Ellsworth,  there  was  published  in  the  Analectic 
Magazine*1  an  appreciation  which  is  probably  still  the 
best  portrayal  of  his  intellectual  character  and  methods. 

"  He  had  not,"  according  to  this  intelligent  eulogist, 
"  laid  a  very  deep  foundation  either  of  general  or  pro 
fessional  learning;  but  the  native  vigor  of  his  mind 
supplied  every  deficiency ;  the  rapidity  of  his  concep 
tions  made  up  for  the  want  of  previous  knowledge ; 
the  diligent  study  of  the  cases  which  arose  in  actual 
business  stored  his  mind  with  principles ;  whatever 
was  thus  acquired  was  firmly  rooted  in  his  memory ; 
and  thus,  as  he  became  eminent,  he  grew  learned. 

"  The  whole  powers  of  his  mind  were  applied  with 
unremitted  attention  to  the  business  of  his  profession, 
and  those  public  duties  in  which  he  was  occasionally 
engaged.  Capable  of  great  application,  and  constitu 
tionally  full  of  ardor,  he  pursued  every  subject  to 

1  D wight's  "  Travels  in  New  England,"  I,  301,  303. 

2  May,  1814,  Vol.  Ill,  pp.  382-403.     The  author  is  supposed  to  have 
been  Gulian  C.  Verplanck  of  New  York,  a  grandson  of  William  Samuel 
Johnson. 


38  OLIVER   ELLSWORTH 

which  he  applied  himself  with  a  strong  and  constant 
interest  which  never  suffered  his  mind  to  flag  or  grow 
torpid  with  listless  indolence.  But  his  ardor  was 
always  under  the  guidance  of  sober  reason.  His 
cold  and  colorless  imagination  never  led  him  astray 
from  the  realities  of  life  to  wanton  in  the  gay  visions 
of  fancy ;  and  his  attention  was  seldom  distracted  by 
that  general  literary  curiosity  which  so  often  beguiles 
the  man  of  genius  away  from  his  destined  pursuit,  to 
waste  his  powers  in  studies  of  no  immediate  utility. 
At  the  same  time,  his  unblemished  character,  his  uni 
form  prudence  and  regularity  of  conduct,  acquired  him 
the  general  confidence  and  respect  of  his  fellow-citizens 
—  a  people  in  a  remarkable  degree  attentive  to  all  the 
decorum  and  decencies  of  civilized  life." 

It  is  the  old  story,  perhaps,  of  the  will's  supremacy. 
It  is  useless  to  recur  to  the  contrast  and  controversy 
between  the  men  who  succeed  and  accomplish  by 
reason  chiefly  of  what  is  commonly  called  character 
and  the  men  who,  with  finer  instincts  and  keener 
susceptibilities  and  rarer  talents,  too  often  end  in 
failure,  leaving  the  world  no  better  for  their  lives.  To 
most  readers,  Ellsworth's  life  would  doubtless  be  a 
more  alluring  study  if,  instead  of  exhibiting  such  a 
steady  growth  in  tasks  and  competence,  he  and  his 
career  were  found  irregularly  brilliant,  appealing,  with 
a  series  of  ups  and  downs,  of  faults  and  atonements, 
to  the  whole  wide  range  of  our  human  sympathies.  It 
is  only  in  a  sober  mood,  with  daylight  senses,  that  one 
can  follow  with  interest  and  with  understanding  the 
course  of  such  a  life.  The  guiding  genius  of  it  all 
was  an  English  constancy,  quickened  with  a  New 
England  keenness,  an  American  readiness  and  capacity 


THE   BAR   AND   THE   ASSEMBLY  39 

for  change.  It  is  impossible  to  read  those  descriptions 
which  his  contemporaries  have  made  of  him  without 
reflecting  that  nearly  all  they  say  of  him  would  apply, 
with  but  slight  abatements,  to  hundreds  of  other  New 
England  men,  unknown  or  famous.  His  distinction 
consists  chiefly  in  the  enlargement  of  powers  and 
merits  which  are  not  uncommon  in  themselves. 

Yet  I  think  we  should  be  mistaken  if  we  were  led  to 
believe  that  Ellsworth  was  commonplace  either  in  his 
parts  or  his  personality.  Were  we  to  search  out  the 
one  human  characteristic  or  endowment  that  has 
achieved  the  most,  for  good  and  evil,  in  the  whole 
history  of  mankind,  we  should  doubtless  fix  on  that 
one  central  gift  of  ardor,  energy,  purpose,  which  was 
surely  his.  Nothing  else  will  so  invariably,  so  finally, 
command  our  homage.  It  stands,  better  than  all  the 
other  gifts  and  powers  put  together,  the  test  of  actual 
results.  Unlike  the  others,  it  is  most  impressive,  not 
in  first  encounters,  but  through  long  acquaintance  and 
the  fullest  trial.  Men  of  many  or  of  brilliant  gifts  may 
quickly  stir  our  admiration,  or,  if  we  are  rivals,  afflict 
us  with  immediate  discomfitures.  The  man  with  this 
gift,  particularly  if  in  his  case  it  is  not  advertised 
or  indexed  by  more  obvious  superiorities,  has  always, 
in  his  conflicts  and  rivalries,  the  advantage  of  a  strength 
concealed.  One  does  not  guess  the  lengths  of  effort 
he  will  go  to,  the  perfect  use  that  he  will  make  of  all 
his  forces.  In  all  his  engagements  he  will  present  to 
his  more  brilliant  adversaries  a  front  like  that  the 
sober  infantry  of  Sparta  showed  so  often  to  the  varied 
and  imposing  line  of  the  Athenians  —  an  opposition 
more  daunting  than  war-songs  and  banners.  Like  the 
Spartans  at  Mantinea,  such  men  do  not  need  to 


40  OLIVER   ELLSWORTH 

hearten  themselves  with  telling  over  the  reasons  why 
they  ought  to  win  their  battles;  they  need  only 
remember,  what  all  brave  spirits  know,  that  battles  are 
not  won  till  they  are  fought,  that  tasks  are  not  accom 
plished  by  merely  proving  one's  ability  to  do  them.1 

But  Ellsworth  had  also  a  quickness  of  perception, 
a  swiftness  in  the  use  of  all  his  mental  powers,  which 
may  well  be  accounted  as  of  itself  a  talent  —  and  a 
talent  of  the  highest  value.  Without  it,  for  instance, 
he  could  hardly  have  handled  at  all  the  great  mass  of 
his  professional  work,  interrupted  as  it  was  with  public 
demands  upon  his  time.  His  rule,  to  go  at  once  to 
the  main  points  of  his  cases,  or  of  whatever  matter  he 
had  in  hand,  seems,  and  doubtless  was,  as  he  formed 
it,  a  counsel  of  modesty ;  but  is  it  not  a  rule  which  we 
should  all  most  gladly  follow  if  we  could  ?  He  excelled 
particularly  in  exposition.  His  argument  was  fre 
quently  convincing  when  he  had  done  no  more  than 
merely  state  the  case.  More  than  one  observer  of  his 
life  told  Wood  of  this  peculiar  excellence  of  his  oratory. 
"  Mr.  Ellsworth's  clear  and  vivid  apprehension  and 
lucid  statement  of  the  facts  involved  in  a  case  would 
frequently,"  they  declared,  "  throw  out  a  blaze  of  light 
that  instantly  dispelled  all  doubts  and  difficulties,  to 
the  surprise  and  admiration  of  every  attendant."  If 
he  was  systematic  and  cautious,  he  was  no  mere  plod 
der  in  his  work. 

Nor  was  he  in  fact  wanting  in  the  power  of  com 
manding  respect  and  attention  for  his  own  sake,  apart 
from  his  work. 

For  that  effect,  also,  in  the  immediate  contact 
with  one's  fellows,  the  central  gift  is  probably  the 

1  See  Thucydides,  "  Peloponnesian  War,"  V,  69. 


THE   BAR   AND   THE   ASSEMBLY  41 

best  of  all,  particularly  as  the  possessor  of  it  advances 
in  achievement  and  in  self-confidence.  Aided  as  it 
was  in  Ellsworth's  case  by  an  uncommon  physical 
endowment,  it  was  enough  to  make  him,  according  to 
one  perhaps  too  glowing  eulogist,  a  person  of  extraor 
dinary  presence.  It  is  Dr.  Dwight  who  on  this  point 
is  again  the  loudest  in  his  praise.  "  Mr.  Ellsworth," 
he  writes,  "  was  formed  to  be  a  great  man.  His  pres 
ence  was  tall,  dignified,  and  commanding;  and  his 
manners,  though  wholly  destitute  of  haughtiness  and 
arrogance,  were  such  as  irresistibly  to  excite  in  others, 
wherever  he  was  present,  the  sense  of  inferiority.  His 
very  attitude  inspired  awe."  Dwight  adds  that  "  in 
every  assembly,  public  and  private,  in  which  he  ap 
peared,  after  he  had  fairly  entered  public  life,  there 
was  probably  no  man,  when  Washington  was  not  pres 
ent,  who  would  be  more  readily  acknowledged  to  hold 
the  first  character."1  Dwight,  no  doubt,  was  partial 
to  Ellsworth  both  as  a  Connecticut  worthy,  and  as  his 
personal  friend ;  but  the  tribute  is  sustained  by  other 
men's  descriptions.  Hollister,  for  instance,  who  in 
writing  his  "  History  of  Connecticut "  seems  to  have 
drawn  freely  on  the  recollections  of  his  elders,  makes 
a  very  similar  portrait. 

"  Ellsworth,"  he  says,  "  was  logical  and  argumenta 
tive  in  his  mode  of  illustration,  and  possessed  a  pecul 
iar  style  of  condensed  statement,  through  which  there 
ran,  like  a  magnetic  current,  the  most  delicate  train  of 
analytical  reasoning.  His  eloquence  was  wonderfully 
persuasive,  too,  and  his  manner  solemn  and  impres 
sive.  His  style  was  decidedly  of  the  patrician  school, 
and  yet  so  simple  that  a  child  could  follow  without 

1  Dwighfs  "  Travels  in  New  England,"  I,  302. 


42  OLIVER   ELLSWORTH 

difficulty  the  steps  by  which  he  arrived  at  his  conclu 
sions.  That  he  also  had  the  best  judicial  powers  that 
were  known  in  that  elder  age  of  our  republic  will 
not  be  disputed.  Add  to  these  qualities  an  eye  that 
seemed  to  look  an  adversary  through,  a  forehead  and 
features  so  bold  and  marked  as  to  promise  all  that  his 
rich,  deep  voice,  expressive  gestures  and  moral  fear 
lessness  made  good,  add  above  all  that  reserved  force 
of  scornful  satire,  so  seldom  employed,  but  so  like  the 
destructive  movements  of  a  corps  of  flying  artillery, 
and  the  reader  has  an  outline  of  the  strength  and 
majesty  of  Ellsworth."1 

All  alike  bear  testimony  that  Ellsworth's  impres- 
siveness  was  never  marred  by  haughtiness  or  an  over 
bearing  way  with  lesser  personages.  His  manners, 
though  perfectly  dignified,  were  also  perfectly  simple 
and  democratic. 

To  attempt  in  this  fashion  a  character  of  the  man 
while  he  is  still  at  the  threshold  of  his  career  is 
doubtless  a  somewhat  unusual  proceeding.  It  is 
better,  as  a  rule,  to  disclose  a  personality  with  deeds  and 
incidents,  to  let  the  man's  life  make  plain  his  quality. 
But  that  preferred  biographic  method  is  peculiarly 
hard  to  apply  to  Ellsworth,  partly  for  reasons  that 
have  already  been  suggested.  In  his  activities,  as  well 
as  in  his  meagre  writings  and  his  all-too-few  recorded 
utterances,  there  is  too  little  of  self-revelation,  too  little 
of  what  we  can  be  sure  was  characteristic.  It  is  nec 
essary,  if  we  would  keep  in  mind  any  distinct  and 
personal  vision  of  him,  to  use  at  once  the  help  we 
have  at  hand  from  men  who  saw  him  in  the  flesh. 
Moreover,  his  tasks  were  often  so  momentous,  those 

1  G.  H.  Hollister,  "History  of  Connecticut "  (1855),  JI>  44!-442- 


THE   BAR  AND   THE   ASSEMBLY  43 

which  were  constructive  in  their  nature  have  proved  so 
lastingly,  so  increasingly  important,  that  we  are  moved 
to  use  what  knowledge  we  can  get  of  his  character  as  a 
means  to  explain  his  achievements  and  to  judge  how 
great  his  part  was  in  his  collaborations  with  other 
statesmen,  instead  of  treating  his  work  as  material 
to  interpret  him.  There  are  few  lives  in  which  what 
may  be  called  the  public  values  so  outweigh  the 
personal. 

It  was  doubtless  his  growing  reputation  as  a  lawyer 
and  his  membership  in  the  Assembly  that  caused  him 
to  be  drawn  at  once  into  the  stirring  activities  of  the 
great  year  1775,  and  determined  what  his  part  in  them 
should  be.  Of  his  part  in  the  patriot  movement  up  to 
this  time  little  is  recorded.  It  is  stated  that  he  was  for 
a  while  a  member  of  the  militia  or  of  some  other  vol 
unteer  force,  and  that  he  was  once  or  twice  called  into 
the  field,  though  never  engaged  in  any  action.1  But 
when  or  where  he  served  is  no  better  known  than  when 
or  where  he  was  earlier  engaged  in  school-teaching. 
Wood  says  merely  that  his  service  was  in  the  militia 
during  the  Revolutionary  War,  when  the  state  was 
threatened  with  invasion.  It  does  appear,  however, 
that  he  was  from  the  first  thoroughly  in  sympathy  with 
the  popular  feeling  and  early  committed  to  the  move 
ment  of  resistance.  When  the  crisis  came,  he  would 
have  been  cold  indeed  if  for  any  reason  but  Tory  con 
victions  he  had  stood  apart  from  his  kindred  and  his 
neighbors. 

The  whole  story,  if  one  reviews  it  afresh  from  the 
point  of  view  of  manhood,  which  is  so  very  different 
from  the  childish  acceptance  of  heroism  and  virtue  and 

1  Flanders,  68. 


44  OLIVER   ELLSWORTH 

devotion  as  matters  of  course  with  which  one  heard  it 
first,  remains,  surely,  one  of  the  most  inspiring  and 
astounding  ever  told.  The  Revolutionary  movement, 
with  all  that  has  ever  been  unearthed  of  a  nature  to  be 
little  its  motives  and  its  men,  was  singularly  noble  and 
singularly  wise.  Much  of  what  is  most  highly  vaunted 
in  our  more  recent  past  seems,  by  comparison,  in  spite 
of  its  bigness,  vapid,  showy,  and  half-hearted.  Save 
only  in  the  nobler  passages  of  the  fight  over  slavery,  we 
find  nowhere  else  in  our  history  such  wonderful  sincer 
ity  and  simplicity,  such  recklessness  of  all  but  high  con 
siderations,  such  courage  of  convictions,  so  childlike 
and  magnificent  a  confidence  in  principle.  The  best 
virtue  that  has  yet  appeared  in  our  national  life  and 
character  was  all  encompassed  in  the  flame  of  that 
first  enthusiasm.  No  civic  or  citizenly  quality  we  now 
possess  surpasses,  or  could  surpass,  the  spirit  of  nation 
ality  that  leaped  alive  in  all  the  little  towns  and  cities 
and  plantations  from  New  Hampshire  to  Georgia 
when  the  obstinate  king  and  the  vain  ministry,  instead 
of  thanking  their  stars  that  they  were  safely  past  the 
trouble  over  the  Stamp  Act,  blundered  on  to  the  tea 
tax  and  the  Boston  Port  Bill. 

None  of  the  colonies  caught  fire  more  quickly 
than  Connecticut.  The  little  province  proved  a 
veritable  tinder-box.  Ten  years  before,  her  govern 
ment  had  responded  to  the  first  announcement  of  the 
Stamp  Act  programme  with  the  promptest  and  strong 
est  of  remonstrances.  Jared  Ingersoll,  who  was  at 
once  commissioned  a  special  agent  at  London,  prob 
ably  accomplished  more  than  any  other  of  the  agents 
there  by  way  of  inducing  the  ministry  to  soften  the 
intended  blow.  Yet  when  he  himself  returned  as  the 


THE   BAR   AND   THE   ASSEMBLY  45 

Stamp  Master  of  the  colony,  an  uprising  of  the  people, 
bigger  and  more  determined  than  he  or  any  other  had 
foreseen,  forced  him,  in  the  most  spectacular  manner, 
to  resign  this  office.  The  Sons  of  Liberty,  headed  by 
Israel  Putnam,  were  strong  in  all  the  towns  of  the 
colony ;  it  has  even  been  claimed  that  the  order  origi 
nated  there.  In  Connecticut's  earlier  controversies 
with  the  home  government,  her  course,  though  reso 
lute,  had  been  singularly  cautious  and  respectful.  But 
from  this  time  not  even  Massachusetts  was  more  openly 
courageous.  Roger  Sherman,  a  lawyer-merchant  of 
New  Haven,  "  between  fifty  and  sixty,  a  solid,  sensible 
man,"  took  stronger  ground  than  even  Otis  or  John 
Adams  on  the  right  of  Great  Britain  to  control  the 
trade  of  the  colonies.1  Sherman  had  been  more  or 
less  engaged  with  public  affairs  for  twenty  years ;  but 
now,  retired  from  business,  he  gave  his  whole  time  to 
the  service  of  his  colony  and  the  cause  of  the  colonies 
in  general.  In  all  the  general  measures  of  protest 
and  resistance  against  those  acts  of  the  home  govern 
ment  which  were  deemed  oppressive,  the  government, 
the  towns,  and  the  people  of  Connecticut  were  eager 
and  enthusiastic.  Watching  with  intense  concern  the 
course  of  events  in  Massachusetts,  they  expressed  by 
words  and  acts  that  were  anything  but  uncertain  their 
sympathy  and  anger.  When  Townshend's  act  to  tax 
the  colonies  was  passed,  Connecticut  merchants  en 
tered  generally  into  the  non-importation  agreement, 
and  seem  to  have  kept  it  better  than  their  neighbors 
of  New  York.  In  1770,  after  many  indignant  town 

1  John  Adams's  Diary,  II,  343.  See  also  Boutell's  "  Sherman,"  63,  64. 
Perhaps  the  best  account  of  Connecticut  in  the  Revolution  is  still  the  old- 
fashioned  but  readable  narrative  of  Hollister,  in  his  "  History  of  Connecticut." 


46  OLIVER   ELLSWORTH 

meetings, —  that  perfect  means  of  popular  agitation, — 
delegates  from  all  the  towns  met  at  New  Haven  to 
concert  a  programme  of  non-importation  and  the  build 
ing  up  of  home  manufactures.  The  sentiment  against 
the  use  of  articles  imported  from  Great  Britain  rose 
to  violent  heights  and  expressed  itself  in  fairly  comical 
ways.  In  1770  also,  Jonathan  Trumbull  entered 
upon  the  office  of  governor,  which  by  successive 
annual  elections  he  continued  to  hold  for  fourteen 
years.  Men  like  Jefferson  and  Henry  and  Rutledge 
held  the  same  office  in  other  colonies  at  different 
times  in  the  Revolutionary  era,  but  Trumbull,  for  his 
conduct  of  the  office  itself,  doubtless  outranks  them 
all.  He  was  not  merely  in  sympathy  with  the  popular 
movement;  he  was  a  bold  and  devoted  leader  of  it/ 
Not  even  Putnam  went  beyond  him  in  courage,  and 
he  exhibited,  moreover,  a  statesmanlike  wisdom  and 
shrewdness  that  was  equal  to  his  enthusiasm.  He 
came  in  time  to  enjoy  in  an  extraordinary  degree  the 
confidence  and  affection  of  Washington,  and  felt,  as 
few  men  did,  the  chieftain's  strong  arm  lean  upon 
him  for  support.  It  was  Washington  who  gave  him 
his  sobriquet  of  "  Brother  Jonathan." 

Save  that  the  actual  collision  came  first  at  Boston, 
there  was  nothing  to  distinguish  the  resistance  of  Con 
necticut  from  that  of  Massachusetts.  If  possible,  the 
towns  of  Connecticut  were  in  even  greater  haste  than 
those  of  Massachusetts  to  proclaim  that  Boston's  fight 
was  their  fight.  When  the  ministry,  abandoning  all 
the  duties  except  those  on  tea,  made  its  attempt  to 
force  tea  into  the  colonial  ports,  Connecticut  people 
had  no  opportunity  for  a  tea  party  of  their  own ;  but 
when  General  Gage  arrived  at  Boston  to  carry  out  the 


THE   BAR  AND   THE   ASSEMBLY  47 

Port  Bill  and  the  other  force  bills  of  1774,  the  Con 
necticut  towns  came  to  Boston's  rescue  with  generous 
contributions  and  the  most  open  sympathy,  and  the 
Connecticut  Assembly,  being  then  in  session,  took 
the  lead  in  calling  for  a  continental  congress.  The 
excitement  rose  to  fever  heat  as  one  after  another  the 
fateful  moves  were  made  by  Gage  on  the  one  hand 
and  Adams  and  Hancock  and  Warren  on  the  other. 
At  last  came  the  runners  with  the  tidings  of  blood 
shed  at  Lexington  and  Concord,  and  Putnam,  drop 
ping  his  historic  plough  in  its  historically  unfinished 
furrow,  was  for  a  moment  in  consultation  with  Trum- 
bull  at  Lebanon,  and  then  away  on  his  ride  of  a 
hundred  miles  and  more  in  eighteen  hours  to  Con 
cord,  the  militia  following  him,  first  in  little  squads, 
then  in  companies,  and  then  in  regiments.  Arnold, 
the  New  Haven  storekeeper,  seizing  without  author 
ity  the  powder  he  needed  for  his  company,  was  gone, 
too,  on  his  way  to  Cambridge  and  Ticonderoga  and 
Quebec,  and  immortality  and  infamy.  The  plan  of 
the  attack  on  Ticonderoga  and  Crown  Point  was 
instantly  conceived  at  Hartford.  The  means  to  fur 
nish  the  expedition  were  subscribed  by  Connecticut 
men.  When  it  reached  the  Green  Mountains,  it  was 
joined  there  by  Ethan  Allen  and  others  who  were 
themselves  Connecticut  men  by  birth.  It  was  finally 
paid  for  by  the  Connecticut  Assembly. 

That  body  was  in  session  by  the  26th  of  April, 
nine  days  after  the  fighting  in  Massachusetts;  and 
the  deputy  from  Windsor  was  at  once  engaged  with 
his  fellows  upon  measures  from  which  there  could  be 
no  retreat.  They  passed  an  embargo  on  food-stuffs ; 
sent  a  committee  to  wait  on  Gage  with  a  powerful 


48  OLIVER   ELLSWORTH 

remonstrance  from  Governor  Trumbull,  and  another 
committee  to  look  after  supplies  for  those  citizens 
who  were  gone  already  to  the  relief  of  Massachusetts ; 
commissioned  runners  to  keep  them  informed  of  all 
the  new  and  startling  happenings;  organized  one- 
fourth  of  the  militia  into  six  full  regiments,  officered 
them,  and  looked  about  for  arms  and  powder  to  equip 
them  ;  imposed  new  taxes  to  cover  these  preparations ; 
and  called  on  all  the  ministers,  with  their  congrega 
tions,  to  "  cry  mightily  to  God." l  To  supervise  the 
expenditures  for  all  these  warlike  activities,  they  con 
stituted  a  commission  called  the  Committee  of  the 
Pay  Table,  and  one  of  the  five  members  was  Oliver 
Ellsworth.2  It  was  perhaps  because  of  this,  his  first 
Revolutionary  task,  that  his  name  does  not  thereafter 
appear  in  the  rolls  of  the  Assembly  until  1779.  At 
the  May  session  of  that  year  he  was  again  a  deputy, 
this  time  for  Hartford ;  but  at  the  same  session  he 
was  chosen  a  member  of  the  Council  of  Safety,  a 
board  of  advisers  which  shared  with  the  governor 
the  responsibility  for  all  war  measures,  and  at  the 
October  session  he  did  not  attend.3 

The  work  of  the  Pay  Table  seems  to  have  steadily 
increased  from  the  beginning.  It  was  then  empowered 
to  audit  and  discharge  all  accounts  incurred  in  the 
defence  of  the  colony,  and  ordered  to  proceed  accord 
ing  to  such  directions  and  rules  as  the  Assembly 
should  pass  from  time  to  time ;  and  from  time  to  time 
the  Assembly  did  pass  votes  of  a  nature  to  enlarge  its 
duties  and  responsibilities.  It  became  a  sort  of  fiscal 

1  Colonial  Records  of  Connecticut,  XIV,  413-441. 

2  Ibid.,  431,  for  resolution. 

8  State  Records  of  Connecticut,  II,  249,  287. 


THE   BAR  AND   THE   ASSEMBLY  49 

war  board,  in  constant  correspondence  with  all  com 
missaries  and  other  persons  who  had  to  do  with  paying 
or  supplying  Connecticut  troops  and  militia.  Perhaps 
the  earliest  letters  of  Ellsworth  now  extant  are  notes 
to  Governor  Trumbull  about  particular  claims  —  dry, 
business  communications  which  doubtless  fairly  reflect 
the  tedious  and  prosaic  nature  of  the  work.1  There  is 
no  sign,  however,  that  he  ever  complained  of  it ;  and 
there  is  evidence  that  he  did  it  faithfully  and  well,  for 
it  was  he  who  was  chosen  for  certain  important  mis 
sions  that  were  necessary  parts  of  it.  In  February, 
1776,  the  Council  of  Safety  having  voted  that  one  of 
the  committee  be  sent  to  the  Commander-in-Chief  of 
the  Continental  Army  to  request  repayment  of  moneys 
advanced  by  Connecticut  to  her  contingent  in  his 
command,  it  was  Ellsworth  who  went,2  and  thus,  per 
haps,  he  got  his  first  sight  of  Washington,  who  was 
still  at  Cambridge,  laying  siege  to  Boston.  Ten  days 
later,  according  to  the  minutes  of  the  Council,  "  Mr. 
Ellsworth,  having  been  to  Genl.  Washington  by  order 
etc.,  to  obtain  the  money  lately  paid  by  our  commit 
tee  to  the  soldiers  etc.,  and  not  able  to  get  it,  is  re 
turned  and  present  and  conversed  with  about  it  etc.," 
—  and  it  is  voted  that  he  or  some  other  apply  to  Con 
gress.3  It  does  not  appear  that  he  went  to  Philadel 
phia,  but  in  May  he  was  sent  to  General  Schuyler  to 
seek  recovery  of  the  sums  already  paid  by  Connecticut 
to  troops  employed  in  Canada.4  Again,  in  the  follow 
ing  December,  while  the  first  campaign  in  the  Jerseys 

1  Sept.  18,  1776;  Dec.  i,  Dec.  6,  1777;  Trumbull  Papers  in  Library  of 
Massachusetts  Historical  Society. 

2  Colonial  Records  of  Connecticut,  XV,  235. 

8  Ibid.,  238.  4  Ibid.,  314-315. 


50  OLIVER   ELLSWORTH 

was  in  progress,  he  went  with  several  others  into  the 
Western  counties  to  raise  reinforcements  for  General 
Lee  —  one  of  the  many  extraordinary  exertions  of 
Trumbull  and  the  people  of  Connecticut  in  the  com 
mon  cause.1  Ten  years  later,  when  debate  arose  in 
a  very  great  company  over  the  ways  in  which  the 
colonies  had  borne  their  several  shares  of  the  com 
mon  burden,  Ellsworth's  full  knowledge  of  the  facts 
enabled  him  to  point  out,  with  quiet  assurance,  that 
Connecticut  had  done  more  and  paid  more,  according 
to  her  numbers  and  her  wealth,  than  any  of  the  states 
whose  representatives  dared  to  criticise  her.  It  is 
also  to  be  remembered  that  this  first  work  of  his,  petty 
and  local  though  it  seemed,  was  yet  of  a  kind  that 
was  quite  as  vital  to  the  success  of  the  cause  as  any  of 
the  stirring  and  heroic  things  Arnold  and  Putnam 
were  doing  in  the  field.  If  it  had  only  been  as  well 
done  everywhere  as  it  was  by  Connecticut  and  her  Pay 
Table,  the  victory  might  have  come  sooner,  and  the 
struggle  would  have  left  behind  it  fewer  unpaid  bills 
and  less  derangement  of  the  currency.  Such  devo 
tion  as  Ellsworth  showed  in  this  employment  was 
rarer  than  the  soldiers'  skill  and  bravery.  But  it  was 
also,  no  doubt,  a  better  preparation  for  his  later  tasks 
in  statesmanship  than  soldiering  could  possibly  have 
been. 

In  1779,  he  became  a  member  of  the  Council  of 
Safety,  and  there  his  duties  were  much  like  those 
assigned  to  the  Board  of  War,  the  chief  executive  arm 

1  State  Records  of  Connecticut,  I,  109.  See  also,  for  his  services  on  the 
Pay  Table,  ibid.,  183.  In  the  Trumbull  collection  there  is  a  letter  from 
Ellsworth  and  Payne  to  Governor  Trumbull,  dated  at  Windsor,  July  10, 
1 779,  urgmg  him  to  procure  artillery  for  the  militia,  to  resist  an  impending 
invasion  of  the  state. 


THE   BAR  AND   THE   ASSEMBLY  51 

of  the  Continental  Congress.  This  may  perhaps  have 
been  a  promotion;  but  two  years  earlier  he  had  taken 
another  office,  which  probably  demanded  more  of  him 
in  time  and  energy  than  it  paid  for  in  either  money  or 
distinction.  In  1777,  he  was  chosen  state's  attorney 
for  Hartford  County.1  The  office  of  king's  attorney, 
instituted  in  1 704,  had  not  during  the  colonial  period 
been  eagerly  sought  after,  though  it  does  seem  to  have 
been  held  by  men  of  very  good  standing,  and  with  the 
change  of  name  there  came  no  lessening  of  the  require 
ments  and  no  increase  of  pay.  The  fees  were  small, 
the  cases  uninviting. 

Yet  Ellsworth  continued  to  hold  it  until  1785,  and 
all  we  know  of  him  is  of  a  nature  to  make  us  feel  sure 
that  he  did  not  slight  its  duties  on  account  of  his  own 
private  practice  or  his  various  other  public  offices.  To 
these,  that  same  year,  another  and  a  higher  was  added. 
At  the  October  session,  the  Assembly  resolved,  "That 
Roger  Sherman,  Eliphalet  Dyer,  Samuel  Huntington, 
Oliver  Wolcott,  Titus  Hosmer,  Oliver  Ellsworth,  and 
Andrew  Adams,  Esqrs,  be  and  they  are  hereby  appointed 
delegates  to  represent  this  State  at  the  General  Con 
gress  of  the  United  States  in  America  for  the  year 
ensuing  and  until  men  be  chosen  and  arrive  in  Con 
gress  if  sitting ;  any  one  or  more  of  them  who  shall  be 
present  in  said  Congress  are  hereby  fully  authorized  and 
impowered  to  represent  this  State  in  said  Congress." 2 
The  next  year,  when  Ellsworth  was  again  in  the  list, 
this  peculiar  commission  was  altered  so  as  to  require 

1  None  of  his  biographers  gives  the  date  correctly.     Several  sketches 
would  lead  one  to  think  that  it  was  1775.     For  the  office,  and  Ellsworth's 
incumbency,  see  "Judicial  and  Civil  History  of  Connecticut,"  157-162. 

2  State  Records,  I,  417. 


52  OLIVER   ELLSWORTH 

that  not  less  than  two  nor  more  than  four  of  the  seven 
delegates  should  be  always  in  attendance.1  After  1 779, 
the  practice  was  for  each  town  to  nominate  to  the 
Assembly  twelve  candidates.  As  the  Assembly  listed 
the  candidates  in  1780  according  to  the  number  of 
nominations  each  had  received,  the  order  of  the  names 
may  perhaps  indicate  the  relative  popularity  of  the  men. 
Ellsworth's  was  the  first,  and  among  those  that  followed 
it  were  Roger  Sherman's,  Samuel  and  Benjamin  Hunt- 
ington's,  and  others  scarcely  less  distinguished.2  He 
was  ree'lected  every  year  until,  in  the  autumn  of  1783, 
he  declined  to  serve  any  longer. 

1  State  Records,  II,  134-135.  2  Ibid.,  II,  264,  462. 


CHAPTER   III 

THE  CONTINENTAL  CONGRESS 

OCT.  8,  1778,  "  Mr.  Ellsworth,  a  delegate  from  Con 
necticut,  attended  and  took  his  seat  in  Congress." l 

Occupied  at  home  with  so  many  other  duties,  Ells 
worth  had  suffered  nearly  a  year  to  elapse  from  the 
time  of  his  first  election  before  he  took  his  place 
among  the  civil  rulers  of  the  loosely  joined  Confeder 
acy  of  States.  It  may  be  as  well  to  give  at  once  the 
terms  of  his  actual  attendance.  Six  years  a  delegate, 
he  went  to  Philadelphia  but  five  times  in  all.  His 
first  service,  lasting  a  little  over  four  months,  ended 
Feb.  18,1779,  when  leave  of  absence  was  granted 
him.  Beginning  again  in  the  middle  of  December, 
1779,  his  name  appeared  on  the  roll-calls  until  the 
latter  part  of  June,  1780;  on  July  3,  another  member 
was  appointed  to  his  place  on  a  standing  committee. 
Absent  nearly  a  year,  he  reappeared  at  Philadelphia 
at  the  beginning  of  June,  1 781,  and  sat  until  September. 
Returning  on  Dec.  20,  1782,  he  sat  until  near  the 
close  of  January.  His  final  attendance  was  from 
April  i  until  midsummer,  I783.2 

1  Journal  of  Continental  Congress,  IV,  583. 

2  Roll  of  State  Officers  and  General  Assembly  of  Connecticut,  pp.  459- 
460;  Journals  of  Continental  Congress,  V,  65,  451;  VI,  103;  VII,  118, 
171,  177,  192-193;  VIII,  45,  in,  124,  170,  291.     Letters  of  Ellsworth,  in 
the  Trumbull  collection  and  elsewhere,  confirm  certain  of  these  dates.     A 
letter  written  from  Philadelphia  to  his  brother  David  is  dated  Jan.  9, 1778 ; 
but  it  seems  clear  that  this  was  a  slip,  Ellsworth  forgetting  that  a  new  year 

53 


54  OLIVER  ELLSWORTH 

Unfortunately,  this  sort  of  spasmodic  membership 
was  not  exceptional.  None  of  the  states  kept  its  full 
quota  in  constant  attendance.  Even  the  great  stand 
ing  committees,  whose  work  was  largely  executive  in 
character,  were  subject  to  incessant  changes  in  their 
membership.  It  is  no  wonder  that  Washington, 
after  pointing  out  that  short  enlistments  were  the 
cause  of  the  worst  embarrassments  in  the  military 
line,  promptly  added,  "  A  great  part  of  the  embar 
rassments  in  the  civil  flow  from  the  same  source." 
So  far  as  Congress  alone  was  concerned,  the  practice 
is  partly  attributable  to  economy;  but  it  is  also 
partly  attributable  to  the  plain  fact  that  the  colonies, 
though  they  had  united  in  declaring  and  in  striving 
to  achieve  their  independence,  were  as  yet  scarcely 
started  on  the  road  to  a  real  union,  to  nationality. 
The  members  of  Congress  were  delegates,  hardly 
representatives.  They  were  responsible  collectively 
to  their  several  states,  rather  than  individually  to 
their  constituents.  They  were  held,  in  fact,  to  a 
regular  accounting  with  the  governments  of  their 
states.  Ellsworth's  letters  from  Philadelphia  to  Gov 
ernor  Trumbull  might  almost  be  despatches  from  an 
ambassador  to  a  secretary  of  state.1  Ordinarily,  he  and 

was  begun.  Another  letter  to  the  same  brother,  written  from  Philadelphia 
on  Nov.  10,  1779,  —  more  than  a  month  before  the  Journal  record  of  Ells 
worth's  second  appearance  in  Congress,  —  is  harder  to  explain.  That  he 
was  there  and  did  not  take  his  seat  is  scarcely  credible.  He  speaks  in  the 
letter  of  the  ill  health  of  his  father,  and  the  only  conjecture  I  can  offer  is 
that  this  or  something  else  suddenly  recalled  him  to  Connecticut. 

1  Most  of  these  letters  are  among  the  Trumbull  papers  in  the  library  of 
the  Massachusetts  Historical  Society,  and  have  been  printed  in  the  Society's 
"Collections,"  fifth  series,  IX,  X,  seventh  series,  II,  III.  By  the  kindness 
of  the  Society's  librarian,  Dr.  Samuel  A.  Green,  I  have  been  permitted  to 
use  the  originals. 


THE   CONTINENTAL   CONGRESS  55 

his  colleagues  for  the  time  being  collaborated  in  joint 
epistles.  All  votes  in  the  chamber  were  taken  by 
states,  and  a  delegation  evenly  divided  on  any  question 
lost  its  vote  altogether. 

Nevertheless,  Ellsworth's  work  in  the  Continental 
Congress  is  not  negligible,  either  from  the  point  of 
view  of  a  biographer  or  in  a  broader  study  of  the 
times.  It  began  before  he  went  to  Philadelphia. 
Dec.  n,  1777,  Congress  appointed  a  committee  to 
investigate  the  causes  of  the  failure  of  an  expedition 
to  Rhode  Island,  naming  him  one  of  the  members,1 
and  Van  Santvoord  adds  that  he  and  two  associates 
took  a  mass  of  testimony  and  presented  a  report.2 
But  the  report  led  to  no  further  action.  Congress 
was  doubtless  far  too  busy  with  other  expeditions  to 
carry  out  its  announced  purpose  to  account  for  all  the 
expeditions  that  had  failed. 

In  the  autumn  of  1778,  when  Ellsworth  went  at  last 
to  Philadelphia,  the  first  fine  ardors  of  the  Revolution 
were  long  since  spent.  Both  sides  had  come  to  see 
clearly  the  nature  of  the  struggle,  and  that  it  was 
bound  to  be  long  and  difficult,  whichever  side  might 
win.  For  the  leaders  of  the  patriot  cause  there  had 
been  many  bitter  disappointments :  from  the  loss  of 
battles,  from  the  falling  away  of  the  weaker-hearted  in 
their  own  party,  from  convincing  proofs  of  the  enemy's 
superior  strength  in  wealth  and  discipline  and  num 
bers.  But  at  least,  on  the  other  hand,  the  cause  they 
fought  and  worked  for  was  now,  by  the  Declaration  of 
Independence,  and  by  many  acts  equally  significant 
and  irrevocable,  completely  blazoned  to  the  world. 

1  Journals,  III,  425-426,  444-445.    There  were  five  members. 

2  Van  Santvoord,  199. 


56  OLIVER  ELLSWORTH 

They  were  no  longer  fighting  for  a  mere  redress  of 
grievances;  they  were  trying  to  keep  alive  a  new 
member  of  the  family  of  nations.  France  had  already 
recognized  them,  and  was  aiding  them  with  money, 
with  ships,  with  soldiers.  Nor  had  success  in  arms 
been  wholly  wanting.  Save  the  desperate  counter- 
strokes  at  Trenton  and  Princeton,  Washington's 
army,  it  is  true,  had  never  won  a  decided  victory 
in  a  pitched  battle ;  but  Burgoyne  and  his  army  were 
captives,  and  the  grand  strategy  of  the  enemy  for  the 
year  1777  had  undeniably  failed.  Emerging  the  next 
spring  from  his  supreme  ordeal  at  Valley  Forge, 
Washington  had  been  cheered  by  the  news  of  the 
treaty  with  France,  and  then  by  Sir  Henry  Clinton's 
evacuation  of  Philadelphia.  In  June,  he  had  fought 
at  Monmouth  a  pitched  battle  which  was  at  worst 
indecisive,  and  which,  but  for  the  misconduct  of 
Charles  Lee,  might  well  have  been  a  victory.  That 
he  and  his  little  armies  could  do  no  more  was  the 
fault  —  so  far  as  it  was  a  fault  at  all  —  of  the  states, 
which  did  not  adequately  recruit  or  supply  them,  and 
of  a  central  government  which  was  still  but  little  more 
than  a  government  by  consent.  The  Articles  of  Con 
federation,  which  would  at  least,  so  soon  as  they  should 
be  ratified,  give  the  authority  of  a  written  agreement 
to  such  concessions  of  power  as  they  made  to  Con 
gress,  had  been  laid  before  the  legislatures  of  the 
states ;  but  these  were  slow  to  ratify.  Meanwhile, 
through  its  standing  committees,  Congress  was  dis 
charging  as  best  it  could  the  various  functions  of  a 
proper  government ;  and  by  requisitions  on  the  states 
and  borrowing  abroad  it  was  doing  what  it  could  to 
procure  the  means  to  keep  the  armies  in  the  field. 


THE   CONTINENTAL   CONGRESS  57 

The  Continental  Congress,  which  had  been,  at  its 
first  session,  the  ablest  group  of  men  ever  gath 
ered  under  one  roof  in  America,  had  by  this  time 
lost  to  the  state  governments  and  to  foreign  courts  a 
number  of  its  most  illustrious  members.  Franklin  and 
John  Adams  were  in  Europe.  Jay  and  Jefferson  and 
Henry  and  John  Rutledge  were  occupied  with  high 
services  to  their  several  states.  Washington,  of  course, 
was  in  the  field.  At  the  first  roll-call  after  Ellsworth 
took  his  seat,  only  thirty-two  delegates  answered  to 
their  names.  But  some  of  the  names  that  were  an 
swered  to  would  have  shone  in  any  list.  To  that 
particular  roll-call  Samuel  Adams  and  Gerry,  Roger 
Sherman,  Dr.  Witherspoon,  Richard  Henry  Lee,  Lau- 
rens,  and  Drayton  responded.  Gouverneur  Morris  was 
a  member,  though  not  then  present,  and,  for  a  little 
while  longer,  Robert  Morris  also.  In  a  few  weeks, 
John  Jay  took  his  seat  from  New  York. 

It  is  doubtful,  however,  if  any  of  these  men  sur 
passed  in  wisdom,  or  in  experience  and  influence,  the 
colleague  whom  Ellsworth  found  awaiting  him,  and 
whose  name  is  signed  with  his  to  several  letters  which 
were  despatched  to  Governor  Trumbull  in  the  next 
few  weeks.  Roger  Sherman  was  by  this  time  a 
veteran  in  the  Continental  politics,  and  we  know  that 
Ellsworth  profited  to  the  full  by  the  older  statesman's 
counsel  and  friendship.  He  once  declared  that  he 
had  taken  the  character  of  Sherman  for  his  model ; 
and  on  this  remark  John  Adams,  it  is  said,  made 
comment  that  it  was  praise  enough  for  both.  They 
worked  together  on  many  occasions  for  the  interest 
of  Connecticut  and  the  good  of  the  whole  country, 
and  though  they  frequently  differed,  and  their  names 


58  OLIVER   ELLSWORTH 

appeared  on  opposite  sides  on  various  questions,  no 
jealousy  or  personal  antagonism  of  any  kind  between 
them  ever  came  to  light. 

The  dry  and  meagre  Journals  of  the  Congress  reveal 
but  little  of  the  human  quality  of  the  debates,  which 
were  always  secret.  To  read  them  seems  a  tiresome 
and  not  a  particularly  profitable  sort  of  historical  delv 
ing,  until,  dismissing  the  notion  that  our  American 
political  system  was  "struck  off  at  a  given  time  by 
the  brain  and  purpose  of  man," l  the  student  comes  to 
understand  that  he  is  groping  among  the  roots  of 
institutions  which  are  now  grown  to  a  colossal  power 
and  reach.  Ellsworth,  for  instance,  soon  received 
assignments  to  three  standing  committees,  which  may 
be  regarded  as  the  rudimentary  forms  of  three  great 
departments  of  our  present  government.  One  was 
the  Marine  Committee,  which  a  little  later  became  the 
Board  of  Admiralty;  by  another  change,  its  duties 
were  soon  devolved  upon  a  department  of  naval 
affairs,  headed  by  a  secretary  or  manager,  whose 
counterpart  under  the  Constitution  is  the  Secretary  of 
the  Navy.  The  second,  already  styled  the  Board  of 
Treasury,  attained,  through  much  the  same  succession 
of  changes,  a  like  ancestral  relationship  to  the  present 
Department  of  the  Treasury.  The  third  was  the 
Committee  of  Appeals;  and  that,  it  is  now  quite 
clear,  was  the  first  forerunner  of  the  present  Supreme 
Court  of  the  United  States;  its  work  was  the  begin- 

1  Gladstone,  in  "Kin  beyond  Sea."  Yet  Gladstone's  famous  sentence 
is  not  deserving  of  the  ridicule  and  the  downright  contradiction  which  it 
has  occasionally  drawn  forth.  It  is  only  by  contrast  with  the  British  Con 
stitution,  "  the  most  subtle  organism  which  has  proceeded  from  the  womb 
and  the  long  gestation  of  progressive  history,"  that  he  attributes  to  the 
American  Constitution  such  an  instantaneous  birth. 


THE   CONTINENTAL   CONGRESS  59 

ning  of  all  our  federal  jurisprudence.  In  view  of 
what  came  after,  Ellsworth's  membership  in  it  has 
been  singled  out  as  the  most  significant  fact  of  his 
first  term  of  service. 

And  the  Journals,  indeed,  supply  us  with  no  great 
mass  of  facts  to  choose  from.  They  inform  us  that 
he  voted  aye  on  two  sets  of  resolutions,  of  a  distinctly 
New  England  flavor,  and  opposed  mainly  by  delegates 
from  the  South,  proclaiming  the  necessity  of  a  very 
strict  morality  among  a  people  fallen  on  such  evil 
times,  and  condemning  in  most  pointed  terms  the 
evil  amusements  of  play-going,  gaming,  and  horse- 
racing.1  They  also  tell  us  how  he  voted  on  a  few 
other  questions,  none,  however,  of  a  nature  to  indi 
cate  very  clearly  his  general  views.  With  R.  H.  Lee 
and  Samuel  Adams,  he  served  on  a  special  committee 
to  attend  to  a  memorial  from  Governor  Trumbull,  call 
ing  attention  to  the  unrewarded  services  and  sacrifices 
of  his  son,  Colonel  Joseph  Trumbull,  who  had  been 
the  commissary-general  of  the  army.2  He  was  on 
another  special  committee  to  look  into  certain  seizures 
of  property  at  the  time  when  Philadelphia  was  evacu 
ated  by  the  British ; 8  and  he  was  also  on  the  committee 
which,  after  investigating  fully  Robert  Morris's  man 
agement,  through  the  firm  of  Morris  and  Willing,  of 
certain  large  purchases  for  the  army,  not  merely  ex 
onerated  Morris  from  all  the  charges  against  his 
integrity,  but  praised  him  highly  for  ability  and 
patriotism.4  This  report  may  very  well  have  opened 
the  way  for  the  later  determination  of  Congress  to  put 
Morris  in  control  of  the  Continental  finances.  Per 

1  Journals,  IV,  590,  602-603.  8  Ibid.,  614. 

597.  */*«/.,  V,  28,  49-51. 


60  OLIVER  ELLSWORTH 

contra,  when  charges  were  brought  against  Benedict 
Arnold,  who  was  at  this  time  in  command  at  Phila 
delphia,  living  beyond  his  means,  consorting  most 
with  an  aristocratic  and  decidedly  Tory  set  in  the 
society  of  the  gayest  of  all  colonial  cities,  and  about 
to  be  married  to  the  beautiful  daughter  of  a  prominent 
Tory  family,  Ellsworth  voted  against  the  motion  to 
postpone  investigation.1  Another  important  assign 
ment  was  to  a  committee  of  all  the  states,  charged  to 
investigate  the  disputes  among  our  agents  abroad  and 
to  consider  the  whole  subject  of  our  foreign  relations. 
When  it  reported,  Congress  voted  to  recall  several  of 
our  representatives  at  European  courts  and  adopted 
rules  intended  to  prevent  such  disagreements  and  con 
flicts  of  authority  as  that  which  had  arisen  between 
Messrs.  Silas  Deane  and  Arthur  Lee.2  His  last 
assignment  was  to  a  committee  which  conferred  with 
Washington  about  the  office  of  inspector  general. 

Unfortunately,  too,  his  letters  do  not  greatly  in 
crease  our  knowledge  of  the  clearly  active  and  varied 
part  which  he  was  already  playing  at  Philadelphia. 
The  letters  to  Trumbull  for  this  term  of  service  are 
all  joint  epistles;  the  first  two  signed  by  Sherman  and 
Ellsworth,  the  remainder,  written  after  Sherman  had 
gone  home,  by  Eliphalet  Dyer,  Ellsworth,  and  Jesse 
Root.  Like  most  joint  letters,  they  are  dry  and  matter- 
of-fact;  but  if  they  had  been  written  by  Ellsworth 
alone  they  would  not,  in  all  probability,  have  been 
much  more  readable.  Three  or  four  letters  which  he 
did  write  at  this  time  to  his  younger  brother,  David, 
have  been  preserved.8  The  first  of  them  begins  with 

1  Journals,  V,  55.  2  Secret  Journals  of  Congress  (ed.  of  1820),  II,  517,  525. 
3  For  copies  I  am  indebted  to  Mr.  G.  E.  Taintor  of  Hartford. 


THE   CONTINENTAL  CONGRESS  6 1 

a  "  Dear  Sir,"  and  another  "  Sir,"  with  a  comma,  pre 
cedes,  "  your  affectionate  brother  "  at  the  end. 

"  Neither  the  business  of  Congress,"  it  runs, '"  nor 
amusements  of  this  gay  City  have  been  able  to  make 
me  forget  my  friends  at  Windsor.  Among  others  of 
them  you  in  particular  have  my  most  constant  re 
membrance  and  continued  good  wishes.  If  in  any 
thing  at  this  distance  I  can  serve  you,  you  will  oblige 
me  by  letting  me  know  it.  Do  you  want  any  (thing) 
that  I  could  purchase  for  you  here  ?  Almost  every 
thing  is  to  be  bo't  here  tho'  at  exorbitant  prices.  A 
principal  object  under  consideration  of  Congress  at 
present  is  if  possible  to  establish  the  credit  of  the 
currency,  and  so  to  reduce  prices.  The  best  time  to 
have  done  this  is  indeed  past.  I  do  not,  however, 
despair  of  its  being  affected  yet.  My  little  family  I 
suppose  are  now  at  Windsor  and  doubt  not  they  have 
your  particular  care  to  make  them  comfortable  in  my 
absence,  and  the  rather  as  you  have  none  of  your  own 
yet  to  be  concerned  for.  I  desire  a  suitable  remem 
brance  to  all  our  family." 

It  is  not  a  particularly  unfavorable  specimen  of 
Ellsworth's  epistolary  style  during  these  years  of  ab 
sorbing  work.  As  he  grew  older,  more  signs  of  cul 
ture  began  to  appear  in  his  rare  letters,  and  also  —  for 
in  this,  too,  he  was  a  New  England  type  —  a  bit  more 
of  himself  and  his  human  interests  and  affections,  and 
even,  here  and  there,  mild  displays  of  humor.  But  the 
Revolutionary  statesmen  were  not,  as  a  rule,  amusing 
correspondents.  They  strike  one  as  an  uncommonly 
serious-minded  and  self-contained  group  of  men. 
Such  high  spirits  as  Gouverneur  Morris  sometimes 
displayed  were  rare  among  them.  Ellsworth's  allusion 


62  OLIVER  ELLSWORTH 

to  his  brother's  lack  of  any  family  of  his  own  may 
have  been  meant  for  a  sly  hint  of  a  suspicion  that  the 
other  was  soon  to  be  married.  A  little  later,  the  fact 
of  an  engagement  being  announced,  he  wrote  his  con 
gratulations.  But  the  nearest  he  came  to  a  joke  on 
an  occasion  which  might  be  considered  somewhat 
favorable  for  a  bit  of  teasing  was  to  wish  that  Goshen, 
the  town  in  which  the  young  woman  lived,  might 
prove  to  be  flowing  in  milk  and  honey.  "  Everybody," 
he  again  breaks  off  from  his  brother's  affair  to  say,  "  is 
now  thinking  and  talking  about  the  paper  currency." 
No  doubt,  the  pleasure-loving  set  in  Philadelphia, 
which  Arnold  preferred  to  his  more  sober  Whig 
acquaintance,  found  Ellsworth  and  his  fellows  less  to 
their  liking  than  Andre  and  the  other  young  English 
officers  whom  these  busy  patriots  had  displaced. 

The  letters  to  Trumbull  also  are  largely  devoted 
to  the  currency.  That  subject,  and  the  almost  equally 
•discouraging  delay  of  the  states  in  ratifying  the  arti 
cles,  were  at  this  time  causing  the  greatest  anxiety 
among  all  thoughtful  Whigs.  The  Continental  issues 
of  paper  money  had  depreciated  to  such  a  point  that 
it  was  seen  clearly  something  radical  must  be  done  to 
give  them  higher  value,  or  else  some  other  medium 
must  be  contrived.  Meanwhile,  certain  states  which 
had  no  claims  to  Western  lands,  led  by  Maryland,  were 
insisting  that  the  states  which  did  have  such  claims 
ought  to  surrender  them  to  the  general  government, 
and  were  making  that  concession  a  condition  of  their 
acceptance  of  the  articles. 

"The  affair  of  finance,"  wrote  Sherman  and  Ells 
worth  in  October,1  "  is  yet  unfinished ;  the  arrange- 

1  Oct.  15,  1778,  Trumbull  Papers. 


THE   CONTINENTAL   CONGRESS  63 

ment  of  the  Board  of  Treasury  is  determined  on,  but 
the  officers  are  not  yet  appointed  —  to-morrow  is  as 
signed  for  their  nomination.  The  members  of  Con 
gress  are  united  in  the  great  object  of  securing  the 
liberties  and  independence  of  the  states,  but  are  some 
times  divided  in  opinion  about  particular  measures. 

"  The  Assembly  of  New  Jersey  in  their  late  session 
did  not  ratify  the  confederation,  nor  has  it  been  done 
by  Maryland  and  Delaware  States.  These  and  some 
other  of  the  states  are  dissatisfied  that  the  Western  un- 
granted  lands  should  be  claimed  by  particular  states, 
which  they  think  ought  to  be  the  common  interest  of 
the  United  States ;  they  being  defended  at  the  com 
mon  expense.  They  further  say  that  if  some  provision 
is  not  now  made  for  securing  lands  for  the  troops  who 
serve  during  the  war,  they  shall  have  to  pay  large 
sums  to  the  states  who  claim  the  vacant  lands  to  sup 
ply  their  quotas  of  the  troops. 

"  Perhaps  if  the  Assembly  of  Connecticut  should  re 
solve  to  make  grants  to  their  own  troops,  and  those 
raised  by  the  States  of  Rhode  Island,  New  Jersey, 
Delaware  and  Maryland,  in  the  lands  south  of  Lake 
Erie,  and  west  of  the  lands  in  controversy  with  Penn 
sylvania,1  free  of  any  purchase  or  quitrents  to  the 
government  of  Connecticut,  it  might  be  satisfactory  to 
those  states,  and  be  no  damage  to  the  State  of  Con 
necticut.  A  tract  of  thirty  miles  east  and  west  across 
the  state  would  be  sufficient  for  the  purpose,  and  that 
being  settled  under  good  regulations  would  enhance 

1  Meaning  the  Susquehanna  lands,  claimed  by  both  Connecticut  and 
Pennsylvania ;  the  dispute  was  now  pending  before  a  tribunal  established 
by  Congress.  "The  lands  south  of  Lake  Erie"  included,  of  course,  the 
region  later  known  as  the  Connecticut  Western  Reserve. 


64  OLIVER   ELLSWORTH 

the  value  of  the  rest.  These  could  not  be  claimed  as 
crown  lands,  both  the  fee  and  jurisdiction  having  been 
granted  to  the  Governor  and  Company  of  Con 
necticut." 

This  was  doubtless  one  of  the  first  suggestions 
looking  to  that  qualified  cession  of  her  Western 
claims  which  Connecticut  made  a  few  years  later.  It 
was  also  with  gifts  of  Western  lands  that  the  state 
finally  made  compensation  to  her  soldiers  and  to 
citizens  who  had  suffered  losses  during  the  war. 

In  January,  Trumbull  having  made  inquiries  about 
the  progress  of  confederation,  Ellsworth,  Dyer,  and 
Root  replied:1  "We  have  only  to  answer  that  the 
States  of  Maryland  and  Delaware  have  not  yet  acceded, 
and  we  are  waiting  with  impatience  for  their  union, 
and  as  the  articles  drawn  comprehend  the  thirteen 
states  jointly,  it  is  at  least  a  doubt  whether  the  assent 
already  obtained  from  eleven  states  is  not  founded  on 
the  joint  consent  of  the  whole  thirteen,  and  unless  the 
remaining  two  join,  the  whole  is  void,  and  it  will  make 
it  necessary  to  send  back  to  each  state  for  their  appro 
bation,  if  no  more  than  eleven  states  unite  in  the  con 
federation,  which  would  take  up  much  time,  besides  the 
inconvenience  which  might  attend,  therefore  are  still 
waiting  in  hopes  of  the  compliance  of  the  other  two." 

Early  in  February,  they  wrote  to  the  governor  that 
only  Maryland  now  held  out ;  but  the  little  state,  as  the 
event  proved,  was  courageous  and  resolved  enough 
to  hold  out  two  years  longer  and  until,  by  extorting 
from  the  claimant  states  the  cessions  she  demanded, 
she  had  accomplished  for  them  all  a  long  step  toward 
the  real  union  they  were  all  so  sadly  in  need  of. 

1  Jan.  4,  1779,  Trumbull  Papers. 


THE   CONTINENTAL   CONGRESS  65 

As  to  the  finances,  the  Connecticut  delegates  had 
the  pleasure  to  inform  the  governor,  early  in  Novem 
ber,  that  his  son  had  been  unanimously  chosen  to  the 
head  of  the  new  arrangement  of  the  treasury ;  and  at 
the  beginning  of  the  new  year  they  transmitted  the 
measures  adopted  by  Congress  "  to  relieve  its  sinking 
credit,  and  possibly,  gradually  to  appreciate  its  value. 
A  portion  of  each  day,"  they  added,  "  was  set  apart  for 
that  purpose,  and  was  not  closed  till  Saturday  night 
last.  We  thought  it  prudent  to  retain  Brown 1  till  he 
could  transmit  to  you  the  proceedings  of  Congress  on 
that  subject,  lest  his  return,  without  any  intelligence, 
might  fix  the  impression  on  the  minds  of  the  people 
that  Congress  was  only  amusing  them  with  bare  pre 
tences,  while  in  fact  they  meant  to  have  the  bills  die 
in  the  possessors'  hands."  Detaining  the  messenger 
another  day,  they  sent  on  the  apportionment  of  a  tax 
of  fifteen  million  dollars  which  Congress  had  voted  to 
request  the  states  to  raise.  Connecticut's  quota  was 
one  million  seven  hundred  thousand  dollars,  and  her 
delegates  pointed  out  that  it  could  be  paid  more  easily 
at  once,  while  the  Continental  bills  were  sunk  so  low, 
than  later,  when,  as  it  was  hoped,  they  would  rise  in 
value.  Of  other  not  unimportant  matters  they  also 
wrote,  and  always  both  with  ardent  patriotism  and 
good  common  sense ;  and  from  time  to  time  they  com 
municated  tidings,  from  various  quarters,  of  moment 
to  the  great  cause. 

But  there  is  nothing  of  the  Committee  of  Appeals. 
It  is  quite  probable  that  Ellsworth  himself  did  not 
at  first  divine  that  of  all  his  duties  in  Congress 

1  A  messenger  who  was  constantly  travelling  backward  and  forward 
between  Philadelphia  and  Hartford. 


66  OLIVER   ELLSWORTH 

this  was  the  most  distinguished.  It  may  well  have 
taken  him  years  to  perceive  how  truly  constructive 
was  the  work  which  he  and  his  fellow-committeemen 
soon  had  the  chance  to  do.  He  does  not  seem  to 
have  moved  very  fast  in  the  direction  of  federalism 
and  the  advocacy  of  a  strong  central  government. 
Perhaps  the  zeal  of  his  own  state,  up  to  this  time,  in 
all  that  pertained  to  the  cause,  kept  him  from  seeing 
how  inadequate  to  the  management  of  Continental 
affairs  the  independent  action  of  thirteen  states  must 
in  the  long  run  prove. 

As  to  the  necessity  for  a  federal  court  or  courts  to 
sit  upon  cases  which  it  would  be  obviously  unfair  to 
submit,  for  final  decision,  to  the  courts  of  any  one  state, 
only  the  actual  coming  up  of  such  cases,  and  not  the 
forethought  of  any  state  or  statesman,  first  made  it 
plain.  One  such  controversy  was  that  which  arose  be 
tween  Connecticut  and  Pennsylvania  over  the  owner 
ship  of  the  Susquehanna  country.  But  cases  of  the 
class  to  which  this  belonged  were  not  numerous  enough 
to  create  of  themselves  a  clear  necessity  for  a  perma 
nent  tribunal.  The  system  of  privateering  which  Con 
gress  early  authorized,  and  the  beginning  of  a  navy 
which  it  accomplished,  soon,  however,  led  to  disagree 
ments  that  were  numerous,  and  clearly  of  a  nature  to 
demand  adjudication  by  some  Continental  court. 

It  was  Washington  himself  who  first  brought  the 
subject  before  the  Congress.  Writing  from  Cambridge 
in  November,  1775,  he  called  attention  to  a  number  of 
prize  cases  that  had  already  been  brought  before  him, 
and  to  an  act  of  the  Provincial  Assembly  of  Massa 
chusetts  establishing  a  Court  of  Admiralty.1  "Should 

1  Sparks,  "Writings  of  Washington,"  III,  154-155. 


THE   CONTINENTAL   CONGRESS  67 

not  a  court,"  he  asked,  "  be  established  by  authority  of 
Congress,  to  take  cognizance  of  prizes  made  by  the 
Continental  vessels  ?  "  Congress  at  once  referred  the 
suggestion  to  a  very  strong  committee,  and  in  accord 
ance  with  its  report  advised  all  the  colonies  to  estab 
lish  courts  for  cases  of  capture.  It  was  also  resolved 
"  That  in  all  cases  an  appeal  shall  be  allowed  to  the 
Congress,  or  such  person  or  persons  as  they  shall 
appoint  for  the  tryal  of  appeals." 

Here  was  a  clear  assumption  of  a  distinctly  national 
judicial  authority.  But  when  the  resolutions  were 
sent  to  Washington  he  remarked,  naturally  enough, 
that  to  make  them  complete  a  court  must  actually  be 
established.  Within  a  short  time,  all  the  colonies  but 
New  York  had  followed  the  example  of  Massachusetts. 
But  when,  in  August,  1776,  the  first  appeal  came  in, 
Congress  hesitated  and  postponed,  and  ended  by 
merely  referring  it  to  a  special  committee  to  decide. 
Seven  cases  were  handled  in  this  fashion.  Finally, 
on  Jan.  30,  1777,  a  standing  committee  of  six  was 
appointed  "  to  hear  and  determine  upon  appeals 
against  sentences  passed  on  libels  in  courts  of  admi 
ralty  in  the  several  states,  agreeable  to  the  resolutions 
of  Congress.",  One  of  the  six  was  Sherman.  In  May 
following,  this  committee  was  discharged,  and  a  new 
committee  of  five  appointed  in  its  place.  By  the  time 
Ellsworth  became  a  member,  thirty-eight  appeals  had 
been  disposed  of,  and  there  had  been  no  resistance 
to  the  authority  of  Congress.1  The  committee  sat 

1  J.  Franklin  Jameson,  The  Predecessor  of  the  Supreme  Court,  in  his 
"Essays  on  the  Constitutional  History  of  the  United  States";  J.  C.  Ban 
croft  Davis,  131  U.  S.  Reports,  Appendix  ;  Sparks,  "Writings  of  Washing 
ton,"  III,  197;  Journals  of  Congress,  III,  43,  174. 


68  OLIVER   ELLSWORTH 

in  the  State  House  at  Philadelphia,  and  appeals  were 
coming  in  regularly.  But  when  he  had  been  about 
a  month  a  member  one  was  received  which  led  very 
quickly  to  a  questioning  of  the  authority  of  the  com 
mittee  and  of  Congress.  The  cause  is  therefore  de 
servedly  celebrated,  and  Ellsworth's  sitting  on  the 
somewhat  anomalous  tribunal  which  tried  it  may  well 
be  accounted  one  of  the  accidents  which  help  to  shape 
even  the  least  haphazard  of  careers. 

Gideon  Olmstead  and  others,  Connecticut  men, 
being  captured  by  the  enemy,  had  been  put  on 
board  the  British  sloop  Active,  bound  from  Jamaica 
to  New  York.  During  the  voyage,  they  rose  against 
the  master  and  crew,  overpowered  them,  confined  them 
in  the  cabin,  and  steered  for  Egg  Harbor,  in  New  Jer 
sey.  When  they  were  in  sight  of  port,  the  brig  Con 
vention,  belonging  to  Pennsylvania,  Captain  Houston 
commander,  took  possession  of  the  Active  and  brought 
her  to  Philadelphia,  where  Houston  libelled  her  before 
,  the  Pennsylvania  Court  of  Admiralty  as  lawful  prize 
to  the  Convention.  Olmstead,  for  himself  and  his 
fellows,  interposed  a  claim  to  cargo  and  vessel.  The 
cause  was  tried  before  a  jury,  and  it  was  decided 
that  Olmstead  and  his  party  were  entitled  to  one- 
fourth  of  the  value  of  the  prize,  and  that  the  other 
claimants  were  entitled  to  the  remaining  three-fourths. 
The  Connecticut  men  appealed  to  Congress,  the  case 
was  referred  to  the  committee,  and  the  appeal  was 
heard  on  December  15.  After  a  full  discussion,  the 
judgment  of  the  state  court  was  reversed.  The 
Active  was  adjudged  to  be  the  lawful  prize  of  Olm 
stead  and  his  companions,  and  the  case  remanded 
to  the  state  court,  which  was  directed  to  execute  the 


THE   CONTINENTAL  CONGRESS  69 

decree.  The  Pennsylvania  judge  acknowledged  the 
committee's  authority,  but  was  unwilling  to  disregard 
the  jury's  award.  Instead,  he  ordered  the  marshal  to 
sell  the  sloop  and  cargo,  and  bring  the  proceeds  into 
court.  The  Connecticut  claimants  thereupon  moved 
the  committee  for  an  order  to  the  marshal  to  execute 
its  decree.  This  motion  was  pending  when  the  com 
mittee,  receiving  a  warning  from  Benedict  Arnold  that 
it  must  act  quickly  if  it  would  assert  its  authority,  and 
urged  also  by  the  claimants,  assembled  one  morning 
at  eight  o'clock  and  granted  an  injunction  to  restrain 
the  marshal  from  paying  into  the  judge's  hands  the 
sum  obtained  by  the  sale.  The  injunction  was,  how 
ever,  disregarded.  In  this  way  there  arose  the  first 
clear  conflict  between  the  judicial  authority  of  a  state 
and  of  the  United  States. 

The  committee  found  itself  as  powerless  to  enforce 
its  decree  as  Congress  was  to  enforce  its  requisitions. 
Fearing  to  endanger  the  public  peace  by  prolonging 
the  controversy,  it  merely  entered  in  its  minutes  that 
it  would  take  no  further  action  in  the  matter  "  until 
the  authority  of  the  court  be  so  settled  as  to  give  full 
efficacy  to  their  decrees  and  process." 

But  this  was  not  the  end  of  the  case.  Nearly  thirty 
years  later  it  came  in  another  form  before  John  Mar 
shall  and  his  associate  justices  of  the  Supreme  Court 
of  the  United  States,  and  there  was  another  collision 
with  the  authorities  of  Pennsylvania  before  the  deci 
sion  which  they  rendered,  sustaining  the  committee, 
was  finally  carried  into  effect.1  The  prize  money  had 
been  given  into  the  keeping  of  Rittenhouse,  the  Phila 
delphia  banker,  and  at  his  death  it  passed  into  the 

1  United  States  vs.  Peters,  5  Cranch's  Reports,  115. 


70  OLIVER   ELLSWORTH 

keeping  of  his  executrix.  In  1802,  Olmstead  and 
others  brought  suit  against  the  executrix  in  the 
United  States  Circuit  Court  for  Pennsylvania.  The 
judge,  Peters,  decided  in  their  favor;  but  the  Penn 
sylvania  legislature  ordered  a  counter  suit  to  be 
brought  in  a  state  court  and  charged  the  governor 
to  protect  the  executrix.  The  plaintiffs  thereupon 
applied  to  the  Supreme  Court  for  a  mandamus,  and 
a  United  States  marshal,  evading  the  guard  of  militia 
set  about  the  house  of  the  executrix,  which  the  popu 
lace  had  nicknamed  "  Castle  Rittenhouse,"  succeeded 
in  enforcing  it. 

Nor  was  this  the  end  of  the  committee.  When  it 
rendered  its  report,  Congress  referred  the  matter  first 
to  a  special  committee  and  then  to  a  committee  of  the 
whole  house.  It  was  debated  for  two  entire  days,  and 
a  series  of  resolves  were  passed,  over  the  opposition  of 
the  Pennsylvania  delegates,  insisting  that  Congress 
and  the  committee  were  within  their  powers  in  all 
that  they  had  done.  A  committee  was  also  appointed 
to  confer  with  a  committee  of  the  Pennsylvania  Assem 
bly,  and  the  resolves  were  later  transmitted  to  the 
legislatures  of  all  the  states,  that  they  might  "take 
effectual  measures  for  conforming  therewith."  1  Sev 
eral  states  did  make  formal  concession  of  the  right  of 
appeal  to  Congress  in  cases  of  capture. 

Ellsworth  had  left  before  these  steps  were  taken, 
but  he  was  back  in  his  seat  and  again  a  member  of 
the  committee  when  the  next  stage  of  this  institu 
tional  development  was  reached.  That  was  in  Janu 
ary,  1780,  when  Congress,  finally  taking  the  advice  of 
Washington,  resolved  "  That  a  court  be  established 

1  Journals,  V,  43,  86-90,  217-222. 


THE   CONTINENTAL   CONGRESS  71 

for  the  trial  of  all  appeals  from  the  courts  of  admiralty 
in  these  United  States,  in  cases  of  capture,  to  consist 
of  three  judges,  appointed  and  commissioned  by  Con 
gress."  A  week  later,  three  able  lawyers  were  named 
for  this  first  federal  court,  one  of  them  Ellsworth's 
colleague,  Titus  Hosmer.1  Their  salaries  were  ulti 
mately  fixed  at  two  thousand  two  hundred  and 
fifty  dollars  each,  and  the  court  was  styled  "  The 
Court  of  Appeals  in  Cases  of  Capture."2  Mean 
while,  the  committee  went  on  with  its  duties  until  the 
new  tribunal  was  organized,  when  all  cases  still  pend 
ing  were  transferred  to  the  court.  Once  or  twice 
thereafter,  Congress  had  occasion  to  defend  the  course 
it  had  taken  on  the  question  of  prizes,  but  the  Articles 
of  Confederation  conceded  the  authority  it  had  al 
ready  exercised,  and  the  court  remained  in  existence 
until  1 786,  when  it  ceased  to  sit  merely  because  there 
were  no  more  cases  on  its  docket.3  By  his  share 
in  creating  it,  Ellsworth  —  no  doubt  unwittingly  — 
had  been  training  his  hand  for  the  noblest  task  it 
ever  found  to  do ;  and  in  his  membership  of  the  com 
mittee  which  preceded  it  he  had  had  an  experience 
which  must  have  proved  of  value  in  the  highest 
office  he  was  ever  to  hold.  Characteristically,  how 
ever,  he  has  left  no  record  of  these  things  in  any  of 
his  letters. 


1  Journals,  VI,  17.  2  Ibid.,  75,  182. 

3  The  history  of  the  Committee  of  Appeals  and  the  Court  of  Appeals  is 
carefully  given  in  J.  F.  Jameson's  "  The  Predecessor  of  the  Supreme  Court," 
in  his  "  Essays  on  the  Constitutional  History  of  the  United  States  in  the 
Formative  Period,"  and  by  J.  C.  B.  Davis,  in  the  "  Centennial  Appendix  " 
to  131  U.  S.  Reports.  These  two  writers  have  left  little  to  be  discovered 
on  the  subject.  See  also  H.  L.  Carson,  "  History  of  the  Supreme  Court 
of  the  United  States,"  I,  33-64,  213-215. 


72  OLIVER   ELLSWORTH 

But  it  is  no  great  wonder  that  he  neglected  in  his 
letters  even  so  big  a  question  as  this,  when  other  needs 
of  the  struggling  young  government  were  so  much 
more  imperative  than  the  need  of  a  judiciary.  In  the 
winter  and  spring  of  1779-1780,  it  was  again  the 
finances  that  absorbed  the  attention  and  activity  of 
Congress ;  and  Ellsworth,  even  before  he  returned  to 
Philadelphia,  had  been  occupied  with  a  scheme  of 
betterment  —  albeit  a  bad  one.  The  Eastern  states 
were  trying  to  unite  on  a  plan  to  remedy  the  evil  of  a 
depreciating  currency,  and  they  hit  upon  the  hopeless 
and  vicious  plan  of  a  limitation  of  prices  by  law. 
Massachusetts  taking  the  lead,  a  convention  for  that 
purpose  was  held  at  Hartford  in  October,  1779,  and 
Ellsworth  was  one  of  the  four  Connecticut  delegates. 
It  was  agreed  that  Connecticut  and  New  York  should 
pass  laws  to  limit  prices  similar  to  those  already  passed 
by  the  three  states  to  the  eastward ;  and  resolutions 
were  adopted  favoring  the  raising  of  more  money  by 
taxation  and  the  repeal  of  certain  state  embargoes, 
and  calling  on  all  the  states  as  far  west  as  Virginia  to 
send  representatives  to  a  larger  convention  for  limit 
ing  prices,  to  be  held  at  Philadelphia  in  January.  To 
this,  also,  Ellsworth  was  a  delegate.  When  it  met, 
however,  four  of  the  invited  states  failed  to  appear  by 
delegates.  There  were  adjournments  from  day  to 
day,  an  adjournment  without  day,  a  reassembling  on 
the  arrival  of  the  delegates  from  Massachusetts  and 
Rhode  Island,  more  adjournments  from  day  to  day,  a 
call  on  New  York  and  Virginia,  which  had  not  yet 
acted,  and  then  an  adjournment  to  April,  in  hope 
that  they  would  act.  But  they  never  acted,  and  the 
convention  never  reassembled.  Congress  had  been 


THE   CONTINENTAL   CONGRESS  73 

brought  to  favor  the  plan,  but  it  could  not  bring  the 
states  into  agreement.1 

It  was  as  well  that  they  never  did  agree.  No  such 
expedient  as  this  would  have  done  any  good  of  itself, 
and  it  might  have  delayed  more  hopeful  measures. 
The  Continental  currency  could  not  be  saved  by  any 
thing  short  of  peace  and  the  lodging  of  the  power  to 
tax  in  the  government  which  had  issued  it.  It  had 
sunk  so  low  by  this  time  that  those  who  held  supplies 
would  hardly  exchange  them  for  the  notes  at  any 
price.  In  January,  Ellsworth  wrote  to  Governor 
Trumbull  that  in  the  neighborhood  of  the  army 
meal  was  selling  at  eight  dollars  the  quart,  and  corn 
at  half  a  dollar  the  ear.2  Congress  had,  in  fact,  already 
decided  to  abandon  the  old  method  of  obtaining  sup 
plies,  to  issue  no  more  bills  of  credit,  and  to  make  no 
more  money  requisitions  on  the  states.  It  was  trying, 
instead,  a  plan  of  requisitions  for  specific  commodities. 
Washington  had  led  the  way  by  calling  on  the  state 
of  New  Jersey  for  food  for  his  army,  and  naming  the 
kind  and  quantity  of  provisions  which  he  expected  from 
each  of  the  several  counties.  His  demand  was  met 
with  an  unexpected  promptness,  and  about  the  same 
time  Connecticut  also  sent  on  to  the  half-starved  troops 
a  supply  of  beef.  To  superintend  the  new  method, 
Congress  —  as  was  its  wont  when  there  was  execu 
tive  work  to  do  —  appointed  a  committee ;  and  to  this 
committee  Ellsworth  was  assigned  the  day  after  he 
took  his  seat.  The  service  was  doubtless  as  laborious 


1  For  both  conventions,  Connecticut  State  Records,  II,  474-475,  572- 
579 ;  letters  from  Ellsworth,  and  from  Sherman  and  Ellsworth,  to  Trumbull, 
in  the  Trumbull  Papers. 

2  Jan.  14,  1780,  Trumbull  Papers. 


74  OLIVER   ELLSWORTH 

as  it  was  obscure.  It  brought  him  neither  fame  nor 
any  other  compensation.  Indeed,  the  time  when  dis 
tinction  could  be  won  in  the  Congress  seemed  to  be 
past.  The  famous  names  on  the  roll  of  members  were 
fewer  than  they  had  ever  been.  In  March,  Madison 
took  his  seat  as  a  delegate  from  Virginia,  but  the  young 
man  was  as  yet  scarcely  known  beyond  the  boundaries 
of  his  native  state.  Ellsworth,  it  is  clear,  had  no 
desire  to  linger  at  Philadelphia.  The  following,  from 
a  letter  to  his  brother  David,  shows  how  little  ambi 
tion  had  to  do  writh  his  being  there,  and  in  what  spirit 
he  consented  to  remain  : a  — 

"  When  I  came  away  I  expected  to  have  returned 
home  before  this  time,  but  nobody  is  yet  arrived  to 
take  my  place,  tho'  I  have  encouragement  that  there 
will  be  soon.  It  would  be  both  more  pleasing  and 
more  profitable  to  me  to  return  home  to  my  own 
family  and  business  than  to  remain  here  any  longer 
at  this  time,  but  you  know  when  a  soldier  goes  forth 
in  publick  service  he  must  stay  until  he  is  discharged, 
and  though  the  weather  be  stormy  and  his  allowance 
small  yet  still  he  must  stand  to  his  post.  All  this  you 
understand  well  by  experience.  I  am  much  less  con 
cerned,  however,  about  my  family  than  I  should  be  if 
I  had  not  left  the  care  of  them  with  so  faithful  a  hand 
as  Mr.  Lyman  and  furnished  him  with  the  means  of 
procuring  them  what  they  may  stand  in  need  of.  You 
will  soon  know  when  I  am  got  home  by  seeing  me  at 
your  house." 

Yet  this  was  the  longest  of  all  his  attendances. 
Just  historians  can  only  deplore  their  inability  to 
paint  in  glowing  and  attractive  colors  the  sober, 

1  March  24,  1780. 


THE   CONTINENTAL   CONGRESS  75 

silent,  uninviting  labors  for  great  causes  which  de 
serve,  but  cannot  win,  the  highest  celebrity  and  praise. 
A  single  brilliant  exploit  in  the  field,  a  single  eloquent 
sentence  on  some  dramatic  occasion,  would  doubtless 
have  done  more  to  keep  alive  the  memory  of  a  man 
like  Ellsworth  or  his  colleague,  Sherman,  than  all  the 
patience,  judgment,  energy,  and  devotion,  with  which, 
through  many  weary  weeks  and  months,  they  gave 
themselves  to  the  things  which  no  one  wished  to  do, 
yet  which  must  be  done,  and  could  only  be  done  by 
men  of  first-rate  ability. 

The  new  plan  for  supplies  seemed  for  a  while  to  be 
working  fairly  well.  Late  in  January,  Sherman  and 
Ellsworth  wrote  to  Trumbull,  telling  of  the  failure  of 
the  scheme  to  limit  prices,  but  ended  cheerfully,  "  It 
is  with  pleasure  however  we  can  add  that  there  ap 
pears  to  be  in  the  states  generally  a  good  forwardness 
to  furnish  their  quotas  of  taxes  and  other  supplies, 
which,  aided  by  measures  now  under  consideration,  it 
is  hoped  may  produce  effects  equally  salutary."  1  A 
few  days  later,  Ellsworth  wrote  again  :2  "  The  supplies 
and  prospects  of  the  army  are  more  comfortable. 
The  general  was  reduced  to  the  necessity  of  demand 
ing  from  the  several  counties  in  New  Jersey  specific 
supplies,  with  which  they  complied,  even  beyond  the 
requisitions,  with  much  spirit.  Maryland  is  said  to 
have  fully  complied  with  the  requisition  of  Congress 
to  that  State,  for  1500  barrels  of  flour.  Delaware 
has  also  exerted  herself  much  in  the  same  way." 
But  the  business  affairs  of  the  Confederacy  could 
never  be  kept  in  a  good  train  until  the  currency 
should  be  reformed.  About  the  same  time,  Ellsworth 

1  January  26,  Trumbull  Papers.  2  January  30,  ibid. 


76  OLIVER   ELLSWORTH 

was  writing  to  his  brother  David,  "  I  cannot  tell  you 
when  we  shall  have  peace  or  good  money." 

The  outcome  of  the  long  and  anxious  debating  of 
Congress  over  the  problem  of  the  currency  was  a  de 
termination  to  abandon  the  Continental  paper  already 
in  circulation,  and  try  to  substitute  another  issue  based 
on  the  credit  of  the  states,  which  had,  what  Congress 
had  not,  the  power  to  tax.  Sherman  and  Ellsworth 
promptly  communicated  the  plan  to  Governor  Trum- 
bull.1  Hastily  written  as  their  letter  doubtless  was,  dry 
and  matter-of-fact  though  it  is,  one  might  search  long 
without  finding  another  contemporary  document,  un 
less  it  should  be  some  letter  of  Robert  Morris  himself, 
setting  forth  more  correctly  the  state  of  the  finances  at 
this  time  and  the  actual  working  of  that  side  of  the 
new  government.  Taken  with  a  letter  of  Trumbull, 
then  on  its  way  to  the  delegates,  telling  what  Connect 
icut  had  done  of  her  own  motion  —  that  is  to  say,  no 
doubt,  of  Trumbull's  motion  —  to  establish  the  credit 
of  the  state  by  "  the  efficacy  of  honest  truth  "  in  deal 
ing  with  the  public  creditor,  it  well  exhibits  the  kind  of 
patriotism  in  civil  office  that  alone  made  possible  the 
final  victory  of  the  armies.2  The  crisis  weighed  so 
heavily  on  Ellsworth's  mind  that  three  days  later  he 
wrote  again  to  the  governor,  and  in  a  style  that  was, 
for  him,  uncommonly  moved  and  personal.8 

"  Permit  me,"  this  letter  runs,  "  as  a  private  citizen 
to  express  my  wishes,  that  the  late  Resolution  of  Con 
gress  on  the  subject  of  finance  may  meet  your  Excel- 

1  See  Appendix  A. 

2  For  a  somewhat  gloomier  view  of  the  situation,  see  a  letter  from  Madi 
son  to  Jefferson,  written  one  week  later.     Hunt's  "  Madison's  Writings," 


March  23,  1780,  Trumbull  Papers. 


THE   CONTINENTAL   CONGRESS  77 

lency's  approbation  and  support.  Your  Excellency 
must  have  long  seen  with  alarming  apprehensions  the 
crisis  to  which  a  continued  depreciation  of  the  paper 
currency  would  one  day  reduce  our  affairs.  It  is  now, 
Sir,  just  at  hand.  Without  more  stability  in  the 
medium  and  far  more  ample  supplies  in  the  Treasury 
than  for  months  past,  it  will  be  impossible  for  our 
military  operations  to  proceed,  and  the  army  must 
disband. 

"  The  present  moment  is  indeed  critical,  and  if  let 
slip,  the  confusion  and  distress  will  be  infinite. 

"  This,  Sir,  is  precisely  the  point  of  time  for  the 
several  Legislatures  to  act  decidedly,  and  in  a  manner 
that  the  world  will  forever  call  wise.  It  is  now  in  their 
power  by  a  single  operation  to  give  a  sure  establish 
ment  for  public  credit,  to  realize  the  public  debt  at  its 
just  value,  and  without  adding  to  the  burthens  of  the 
people  to  supply  the  Treasury.  To  furnish  one  com 
mon  ground  to  unite  their  exertions  upon,  for  the 
accomplishment  of  these  great  purposes,  your  Excel 
lency  will  perceive  to  be  the  spirit  and  design  of  the 
Resolutions  referred  to.  They  speak  a  language  too 
plain  to  need  any  comment.  I  will  only  add  concern 
ing  them  that  (they)  have  been  the  product  of  much 
labor  and  discussion ;  and  tho'  some  states  may  have 
reason  for  thinking  they  are  not  the  best  possible,  yet 
they  are  the  best  Congress  would  agree  upon. 

"  And  should  they  be  rejected,  I  confess  I  do  not 
well  see  on  what  ground  the  common  exertions  of  the 
several  states  are  to  be  united  and  continued  hereafter." 

Never  eloquent  on  paper,  Ellsworth  here  reveals, 
more  fully  than  in  any  earlier  writing  that  has  come 
down  to  us,  how  deeply  his  reserved,  cautious,  but 


78  OLIVER   ELLSWORTH 

constant  nature  was  moved  by  whatever  affected  the 
cause  for  which  he  was  toiling  in  such  unshowy  ways. 
Washington  might  have  written  very  much  in  this 
fashion ;  indeed,  there  are  letters  of  his  to  governors 
and  to  Congress  that  are  not  dissimilar  in  tone. 

That  same  day,  Messenger  Brown  came  in  with 
Trumbull's  letter  and  copies  of  the  Assembly's  acts, 
and  Sherman  and  Ellsworth  wrote  again,  together, 
urging  the  proposals  of  Congress.  A  plan  to  reduce 
the  battalions  already  in  the  field,  simply  for  econ 
omy,  was,  they  said,  actually  favored.  Another  plan  of 
economy  was  to  leave  unfilled  the  vacancies  in  the 
several  Continental  lines.  They  also  praised  the  gov 
ernor  and  the  Assembly  for  their  efforts  to  sustain  the 
credit  of  the  state  and  for  taking  the  lead  of  all  the 
states  with  measures  to  carry  out  the  new  proposals. 
Ellsworth  was  deeply  gratified. 

"  I  thought  it  my  duty,"  he  wrote  to  the  governor  a 
little  later,1  "  to  read  in  Congress  the  account  I  had  re 
ceived  from  Connecticut,  and  was  kept  in  countenance 
by  their  just  approbation.  And  it  is  devoutly  to  be 
wished  that  the  well-timed  and  animated  example  of 
so  respectable  a  state  may  have  its  due  influence  with 
the  rest. 

"  A  number  of  their  Assemblies,  as  New  York,  New 
Jersey,  Pennsylvania,  Maryland  and  Virginia  are,  it  is 
said,  now  convened  or  convening,  and  will  be  informed 
through  the  channel  of  the  Philadelphia  papers,  if  not 
otherwise,  what  Connecticut  has  done." 2 


1  May  5,  Trumbull  Papers. 

2  The  next  day,  May  6,  Madison  wrote  to  Jefferson :  "  Congress  have 
the  satisfaction  ...  to  be  informed  that  the  legislature  of  Connecticut  has 
taken  the  most  vigorous  steps  for  supplying  their  quota  both  of  money  and 


THE   CONTINENTAL   CONGRESS  79 

Throughout  the  spring,  and  well  into  the  summer, 
he  was  still  occupied  with  the  baffling  task  of  Congress 
—  to  secure  money  without  taxation.  Biographers  of 
Washington  are  not  wrong  in  praising  his  incessant 
wrestling  with  Congress  and  the  states  for  the  means 
to  carry  out  his  plans ;  but  they  sometimes,  one  feels, 
fail  to  remember  that  Congress  could  not  do  more 
than  it  was  doing.  At  last,  in  June,  Ellsworth,  as  a 
member  of  another  committee,  helped  to  carry  through 
a  plan  which  proved  to  be  the  beginning  of  better 
things.  It  was  Robert  Morris's  scheme  to  secure  sup 
plies  for  the  army  by  a  subscription,  with  the  guaranty 
of  Congress  that  the  subscribers  should  be  repaid; 
and  the  machinery  of  the  subscription  took  a  form 
which  made  it,  if  not  precisely  a  bank  itself,  the  prede 
cessor  of  the  first  of  the  national  banks.  Ellsworth's 
committee  having  reported  in  favor  of  the  proposal,  it 
was  hastily  indorsed,  the  guaranty  was  given,  and  a 
standing  committee,  with  Ellsworth  at  its  head,  was 
appointed  to  cooperate  with  the  officers.  The  relief 
this  measure  gave  to  Washington  can  scarcely  be 
overestimated. 

Meanwhile,  Ellsworth's  letters,  taking  a  wider  and 
wider  range,  had  been  keeping  the  governor  informed 
of  many  things  which  he  might  otherwise  have  been 
slow  to  learn.  For  the  enemy  was  now  transferring 
his  activities  to  the  South,  and  the  wiser  heads  were 
also  looking,  more  and  more  hopefully,  to  Europe, 

commodities  ;  and  that  a  body  of  their  principal  merchants  have  associated 
for  supporting  the  new  paper.  ...  A  similar  vigor  throughout  the  Union 
may  perhaps  produce  effects  as  far  exceeding  our  present  hopes,  as  they 
have  hitherto  fallen  short  of  our  wishes."  Hunt's  "  Madison's  Writings," 
I,  62-63. 

1  Journals  of  Congress,  VI,  95. 


80  OLIVER   ELLSWORTH 

where  diplomacy  was  much  engaged  with  American 
affairs.  Late  in  January,  Ellsworth  wrote : l 

"  Congress  have  recent  assurances  that  France  and 
Spain  on  the  one  hand  as  well  as  Great  Britain  on  the 
other  are  sparing  no  possible  measures  and  preparation 
for  the  ensuing  season,  and  by  taking  early  advantage 
thereof  to  render  it  decisive  on  the  great  question  of 
American  independence.  And  that  these  states  might 
not  be  unfurnished  for  the  necessary  exertions  on 
their  part,  his  most  Christian  Majesty  has,  in  addi 
tion  to  timely  communications,  issued  an  order  to 
his  ministers  ample  to  supply  them  with  arms  and 
ammunition." 

He  continued  to  watch  the  movements  of  our  allies 
and  the  general  European  situation  with  a  clear  under 
standing  that  the  outcome  of  our  struggle  did  not 
depend  on  our  own  exertions  alone.  He  was  also  not 
unmindful  of  the  work  of  the  Spaniards  along  the 
coast  of  the  Mexican  Gulf,  —  an  episode  of  the  con 
flict  which  historians  have  somewhat  neglected,  —  but 
followed,  with  an  interest  justified  by  the  outcome, 
the  expedition  of  Galvez  against  the  British  province 
of  West  Florida.  In  a  letter  written  in  May,  he  dis 
cussed,  with  what  was  for  him  unusual  fulness  and 
freedom,  the  state  of  England  as  it  affected  the  pros 
pect  of  peace:2 

"  No  official  information  has  been  received  very 
lately  from  Europe,  but  from  the  current  of  publica 
tions  on  that  side  of  the  water,  and  especially  the 
English  papers,  it  does  not  appear  that  any  power  has 
yet  been  found  sufficiently  uninformed  to  join  Great 
Britain  in  the  wicked  and  Romantic  attempts  at  re- 

1  January  26,  Trumbull  Papers.  2  May  9,  ibid. 


THE   CONTINENTAL   CONGRESS  8 1 

ducing  to  obedience  what  she  yet  styles  her  rebellious 
Colonies.  And  as  she  cannot  obtain  assistance,  she 
seems  willing  to  have  it  believed  that  she  stands  in 
need  of  none,  and  accordingly  goes  on  with  a  show 
and  pretension  of  being  sufficient  for  all  things  of 
herself;  much,  perhaps,  as  a  merchant  on  the  eve 
of  Bankruptcy  makes  an  uncommon  parade  of  wealth 
and  business  in  order  to  keep  up  the  delusion  until 
chance  may  have  had  time  to  achieve  something  in 
his  favor.  The  comparison,  however,  fails  in  this  re 
spect,  that  it  is  no  secret  to  the  world  that  the  cir 
cumstances  of  Great  Britain  are  bad,  and  that  her 
wisest  men  are  filled  with  consternation.  She  is 
ready  to  be  crushed  with  the  weight  of  her  own  debt, 
which  is  accumulating  upon  her  by  the  whole  expense 
of  the  war,  and  for  which  she  is  already  mortgaged  to 
pay  forever  an  annual  interest  of  seven  millions  ster 
ling.  Her  revenues  being  fully  charged  with  the 
interest,  it  is  impossible  for  her  ever  to  reduce  the 
principal  but  by  a  sponge  or  revolution,  and  as  im 
possible  for  her  to  go  on  much  further  in  borrowing. 
She  is  also  embarrassed  with  the  claims  of  oppressed 
Ireland,  which  may  perhaps  advance  upon  her,  and 
she  is  less  able  to  contest  them.  Scotland,  also,  tho' 
habitually  servile  to  the  Throne  (speaks  ?)  with  deter 
minate  insolence,  and  will  be  heard.  Add  to  which, 
county  conventions,  in  spite  of  the  Ministry,  are  now 
forming  in  various  parts  of  England,  under  the  first 
characters  of  the  nation,  for  reducing  within  due 
bounds  the  influence  of  the  Crown,  and  the  public 
expenditures ;  or,  which  is  the  same  thing,  oversetting 
the  present  venal  and  Utopian  system  of  adminis 
tration. 


82  OLIVER   ELLSWORTH 

"  From  these  marks  of  the  weakness  and  dissolution, 
she  bears  within  herself,  it  is  reasonable  to  expect  that 
Great  Britain  will  ere  long  cease  from  troubling  us ; 
and  unless  she  can  speedily  regain  the  sovereignty  of 
the  seas,  she  may  be  reduced  from  her  Insular  situa 
tion,  to  hold  her  own  -existence  at  the  mercy  of  her 
enemies. 

"  The  use  good  men  in  America  will  derive  from 
these  considerations,  will  be  of  encouragement  to 
persevere  in  the  present  contest,  and  continue  working 
with  the  Lord  until,  by  his  good  pleasure,  the  great 
business  of  our  political  Salvation  shall  be  fully  accom 
plished." 

Ellsworth  was  here  deceiving  himself,  as  were  others 
also,  concerning  the  imminence  of  a  collapse  of  Eng 
land's  credit.  Her  marvellous  powers  of  endurance 
and  recovery,  and  the  soundness  of  her  financial 
system,  were  soon  to  bear  the  test  of  wars  far  longer 
and  more  costly  than  the  war  in  America.  But  he 
was  wise  to  draw  encouragement,  even  at  a  time  when 
all  the  news  from  the  southward  was  bad  news,  from 
England's  international  isolation  and  from  the  temper 
of  the  English  people  themselves.  An  admirable 
English  historian  of  the  period1  is  making  it  clearer 
than  ever  that  from  first  to  last  a  great  part  of 
the  people  of  England,  possibly  the  greater  part, 
opposed  the  policy  of  the  king  and  his  ministers  with 
the  colonies,  and  that  it  did  indeed  fill  with  consterna 
tion  the  wisest  of  her  statesmen.  Ellsworth  had  soon 
to  announce  to  the  governor  that  Charleston  had 
fallen  early  in  May,  and  before  he  returned  to  Con- 

1  Sir  George  Otto  Trevelyan,  whose  "  American  Revolution "  is  still 
(1905)  unfinished. 


THE   CONTINENTAL   CONGRESS  83 

necticut  the  enemy  were  overrunning  the  Carolinas. 
Gates's  defeat  at  Camden  and  Arnold's  treason  at 
West  Point  were  still  to  follow.  Yet  the  chances  are 
that  during  the  long  period  which  elapsed  before  he 
came  again  to  Congress  he  remained  hopeful  of  a  final 
victory. 

Perhaps  his  entering  on  the  duties  of  yet  another 
office  was  one  of  the  reasons  why  he  stayed  so  long 
away  from  Philadelphia.  He  was  this  year  chosen  a 
member  of  the  governor's  council,  and  the  governor's 
council  in  Connecticut,  besides  its  merely  advisory 
function,  was  the  upper  house  of  the  legislature ;  and 
the  legislature  was  still  the  Supreme  Court  of  Errors. 
Membership  in  the  council,  therefore,  was  not  a  sine 
cure,  but  imposed  activities  that  were  now  executive, 
now  legislative,  and  now  judicial.  As  Ellsworth 
remained  a  member  until  1785,*  he  held,  from  this 
time  until  the  end  of  the  war,  apart  from  whatever 
share  he  still  had  in  the  work  of  the  Pay  Table,  three 
public  offices.  Few  Continental  Congressmen  can 
have  had  such  good  excuses  for  their  absences. 

When  he  did  go  back,  in  June,  1781,  it  was  for  the 
least  important,  as  well  as  the  briefest,  of  his  terms  of 
service.  Ill  health  was  his  reason  for  cutting  it  so 
short.  As  early  as  the  first  of  August  he  wrote  to 
Trumbull  that  he  found  himself  too  unwell  for  a  con 
stant  attendance  in  Congress,  and  that  his  family  and 
business  also  needed  his  attention.  He  urged,  there 
fore,  that  some  other  member  of  the  delegation  be 
sent  on  by  the  first  of  September. 

Meanwhile,  Sherman  was  again  his  colleague,  and 

1  Roll  of  State  Officers  and  Members  of  the  General  Assembly  of 
Connecticut. 


84  OLIVER   ELLSWORTH 

they  wrote  somewhat  more  cheerfully  than  the  year 
before  concerning  the  state  of  the  finances  and  the 
outlook  for  the  cause.1  For  one  thing,  the  Articles  of 
Confederation  were  now  in  force.  Though  the  new 
Continental  and  state  bills  were  no  better  than  five  for 
one  in  specie,  Robert  Morris  had  lately  taken  the  office 
of  superintendent  of  the  finances  and  much  was  ex 
pected  of  him.  Hopes  were  entertained  that  the 
emperor  of  Prussia  and  the  empress  of  Russia  would 
soon  offer  to  mediate.  The  military  situation  in  the 
South  was  more  encouraging. 

Still,  there  was  work  enough  to  do,  and  Ellsworth 
had  his  share  of  it.  Morris's  management  of  the 
finances  had  doubtless  convinced  Congress  by  this 
time  that  all  the  departments  ought  to  have  single 
heads,  and  Ellsworth  served  on  the  committee  to 
apply  this  principle  to  the  marine.2  Other  subjects 
with  which  he  dealt  as  a  member  of  various  commit 
tees  were  General  Greene's  conduct  of  the  Southern 
campaign,  the  pay  of  delegates  from  several  Southern 
states  too  poor  to  sustain  their  representatives,  the 
traitorous  commerce  of  New  Yorkers  with  the  enemy, 
and  a  proposed  convention  with  France  concerning 
the  interchange  of  consuls,  vice-consuls,  and  agents.3 
On  several  of  these  committees,  Madison,  now  by  long 
continuous  attendance  risen  to  much  influence,  was 
his  colleague.  Van  Santvoord,  studying  closely  the 
motions  and  the  roll-calls  on  questions  of  a  sectional 
nature,  finds  that  on  all  such  issues  Ellsworth  stood 
with  his  New  England  colleagues,  sometimes  clearly  op- 

1  July  12,  1781,  Trumbull  Papers. 

2  Journals,  VII,  141,  152. 

3  Ibid.,  157,  158,  165,  168,  177  ;  Secret  Journals,  III,  20. 


THE   CONTINENTAL   CONGRESS  85 

posing  the  interests  of  South  Carolina  and  other  South 
ern  states,  which  were  now  championed  in  Congress  by 
John  Rutledge.  It  is  true  that  on  a  motion  to  send  some 
arms  into  South  Carolina  for  the  use  of  the  militia  Ells 
worth  moved  to  amend  by  leaving  the  disposition  of  the 
arms  to  General  Greene.1  He  also  wished  to  postpone, 
perhaps  to  kill,  a  motion  to  relieve  certain  inhabitants 
of  South  Carolina  who  had  been  recently  released  by 
a  cartel  from  a  cruel  imprisonment.2  Georgia  and  the 
Carolinas  having  furnished  supplies  to  the  armies  in 
that  quarter,  it  was  proposed  to  credit  them  with  a 
proportionate  allowance  on  their  quotas  of  taxation, 
and  this,  too,  he  opposed.  Unquestionably,  there  was 
in  Congress  plenty  of  sectional  feeling  and  a  lively 
bickering  among  the  states.  But  these  facts  are  not 
enough  to  prove  that  Ellsworth  was  governed  by 
merely  sectional  devotions  and  antipathies.  He  did 
support  the  motion  to  provide  for  the  unpaid  Southern 
delegates.3  Slow  as  he  was  to  follow  Madison  and 
Hamilton  on  the  road  to  nationalism,  he  was  in  truth 
exceptionally  broad  in  his  patriotism,  keeping  always 
first  in  his  desires  the  objects  that  were  common  to 
men  of  the  patriot  party  everywhere. 

Before  he  came  again  to  Philadelphia  the  greatest 
of  those  objects  was  substantially  secured.  Peace  had 
not  been  declared,  but  the  fighting  was  over.  Com 
missioners  at  Paris  were  negotiating  with  the  envoys 
of  England  and  of  France  treaties  which,  whatever 
else  they  might  contain,  would,  it  was  now  quite  cer 
tain,  concede  the  independence  of  America.  Strangely 
enough,  one  of  Ellsworth's  tasks  at  home  had  been  to 
vindicate  from  a  charge  of  gross  disloyalty  to  the  now 

1  Journals,  VII,  142.  2  Ibid.,  152.  3  Ibid.,  158. 


86  OLIVER   ELLSWORTH 

victorious  cause  no  less  a  patriot  than  Jonathan  Trum- 
bull.  Charged  with  conniving  at  the  trade  with  the 
enemy,  and  even  with  engaging  in  it,  the  governor 
had  asked  the  Assembly  to  make  an  investigation.  A 
committee  was  promptly  appointed,  and  Ellsworth 
rendered  the  report.1  It  completely  exonerated 
Trumbull,  declaring  that  the  slander  had  probably 
been  started  by  some  unknown  emissary  of  the 
British.2  The  incident  may  serve  to  indicate  the 
place  which  Ellsworth  himself  held  at  this  time  in 
Connecticut. 

In  Congress,  also,  notwithstanding  it  was  fifteen 
months  from  his  last  appearance  there,  it  is  clear  that 
he  took  at  once  a  place  among  the  leaders.  Madison 
and  Rutledge  were  still  members,  and  in  November, 
1782,  Alexander  Hamilton  had  joined  them;  and  the 
journal,  meagre  as  it  is,  affords  material  for  the  infer 
ence  that  these  three,  with  Ellsworth  and  James  Wil 
son  of  Pennsylvania,  were  the  foremost  men  in  the 
chamber  during  the  following  winter  and  spring.  Their 
names  appear  again  and  again  whenever  really  impor 
tant  subjects  are  dealt  with.  Fortunately,  however, 
we  are  no  longer  dependent  entirely  on  the  Journals 
for  our  knowledge  of  the  proceedings.  In  the  autumn 
of  1782,  Madison,  an  admirable  reporter,  began  to  take 
down  the  substance  of  the  speeches.  Some  months 
later,  the  house  voted  down  a  motion  of  Hamilton  to 
open  its  doors  to  the  public  whenever  the  finances 
should  be  up ; 3  but  Madison's  notes  went  far  to  open 
them  for  later  generations. 

1  Feb.  13,  1782,  Trumbull  Papers.  2  Ibid. 

8  Ellsworth  voted  against  this  motion  when  it  was  renewed  in  April. 
Journals,  VIII,  252. 


THE   CONTINENTAL   CONGRESS  87 

There  was  at  this  time  a  distinct  revival  of  energy 
in  Congress.  The  end  of  the  fighting,  which  had 
released  some  able  men  from  military  service  to 
share  in  the  debates,  had  also,  of  course,  brought  new 
questions  to  decide ;  and  there  were  other  questions, 
equally  pressing,  which  had  been  held  back  until  the 
peace  should  be  achieved.  Foremost  of  them  all, 
however,  was  still  the  old  and  unsolved  problem  of 
how  the  general  government  was  going  to  sustain 
itself  and  meet  its  obligations  without  the  power  to 
raise  money  either  by  customs  duties  or  direct  taxation. 
Morris  had  exhausted  all  his  skill  in  borrowing;  to 
pay  the  loans  he  had  contracted,  to  redeem  the  still 
outstanding  paper  currency,  to  devise  a  sure  and 
steady  inflow  of  revenue  —  these  things  were  beyond 
his  power,  unless  the  states  as  well  as  Congress  should 
hold  up  his  hands.  The  Articles  had  left  the  right  of 
laying  taxes  with  the  states;  and  these,  now  that  the 
crisis  was  past,  were  sunk  into  a  stolid  inactivity  worse 
than  that  of  two  years  earlier.  Morris  had  to  report 
that  on  the  requisition  of  1782  only  South  Carolina  had 
paid  her  quota  in  full,  and  that  was  in  supplies  to 
troops  within  her  borders.  The  proportions  of  their 
several  quotas  paid  in  by  the  other  states  ranged  from 
one-fourth  by  Rhode  Island  down  to  one-one-hundred- 
and-twenty-first  by  New  Hampshire.  From  three 
states,  nothing  whatever  had  been  received.1  "  Im 
agine,"  Morris  wrote  to  Franklin  in  January,  1783, 
"  the  situation  of  a  man  who  is  to  direct  the  finances 
of  a  country  almost  without  means  (for  such  you  will 
perceive  this  to  be),  surrounded  by  creditors  whose 

1  W.  G.  Sumner,  "  Financier  and  Finances  of  the  Revolution,"  II, 
55- 


88  OLIVER   ELLSWORTH 

distresses,  while  they  increase  their  clamor,  render 
it  more  difficult  to  appease  them ;  an  army  ready  to 
disband ;  a  government  whose  sole  authority  con 
sists  in  the  power  of  framing  recommendations."  It 
is  no  wronder  that  a  fortnight  later  he  wrote  to  Con 
gress,  "  If  before  the  end  of  May  effectual  measures 
to  make  permanent  provision  for  the  public  debts  of 
every  kind  are  not  taken,  Congress  will  be  pleased 
to  appoint  some  other  man  to  be  superintendent  of 
their  finances."1  Nor  is  it  any  wonder  that  Congress 
did  not  accept  his  resignation.  He  yielded,  and 
kept  his  office,  perhaps  in  the  hope  that  through  a 
change  in  the  system  something  might  be  done  to  re 
lieve  both  him  and  the  country  from  their  humiliating 
plight. 

That  was  the  pressing  business  of  the  hour.  A 
few  saw  also  beyond  the  hour,  and  strove  to  turn  the 
situation  to  such  account  that  the  system  might  be 
fitted  for  the  permanent  and  constant  duties  of  a  real 
government  in  time  of  peace.  Of  these,  Hamilton 
was  the  ardent  leader.  Fresh  from  the  office  of 
Continental  receiver  for  New  York,  he  knew  at  first 
hand  the  utter  inefficiency  of  requisitions  as  a  means 
of  revenue.  During  the  summer  he  had  drafted  for 
the  New  York  legislature  some  resolutions  which 
were  sent  to  Congress,  urging  a  general  convention 
to  amend  the  Articles.  He  had  come  himself  to 
Congress  mainly  to  see  if  it  were  possible  to  build 
up,  on  the  basis  of  the  Articles,  a  government  strong 
enough  to  live.  Restless  under  makeshifts  and  im 
patient  with  incompetence,  he  went  at  his  purpose 
with  an  energy  that  sometimes  frightened  where  it 

Diplomatic  Correspondence  of  the  Revolution,  XII,  310,  326. 


THE   CONTINENTAL   CONGRESS  89 

did  not  overcome.  Madison,  who  had  long  been 
gravitating  to  the  same  general  desire,  pursued  it 
much  more  cautiously  and  tactfully.  Wilson  of 
Pennsylvania  made  an  able  third.  Rutledge  was  the 
stoutest  champion  of  the  states.  Ellsworth  occupied 
the  middle  ground  and  took,  for  the  time,  a  course 
that  was  moderate  to  the  point  of  hesitation.  In  this 
he  doubtless  correctly  represented  his  section.  In  the 
movement  for  a  stronger  government,  New  England 
had  as  yet  taken  but  little  part.  Moreover,  the  delegates 
from  Massachusetts  had  fallen  below  Connecticut's  in 
point  of  ability  and  influence,  and  neither  Rhode  Island 
nor  New  Hampshire  had  a  commanding  voice.  Un- 
sustained  by  any  clearly  national  impulse  in  the  people 
behind  him,  and  without  support  from  any  New  Eng 
land  colleague  of  more  than  ordinary  force,  Ellsworth, 
not  unnaturally,  was  slow  to  accept  a  leadership  so 
radical  and  fiery  as  Hamilton's.  He  and  Rutledge 
were  soon  again  in  controversy  over  plans  to  relieve 
the  state  of  South  Carolina ; 1  but  on  the  bigger 
issues  he  found  himself  at  first  quite  as  close  to  the 
South  Carolinian  as  to  Hamilton  and  Madison  and 
Wilson. 

He  had  been  but  a  few  days  in  his  seat  when  the 
whole  subject  of  finance  was  again,  in  a  most  unpleas 
ant  fashion,  forced  to  the  front.  Another  scheme  of 
revenue  had  come  to  failure.  Nearly  two  years  ear 
lier,  Congress  had  asked  the  states  for  authority  to 
lay  a  duty  of  five  per  cent  on  all  imports,  and  with 
this  request  all  but  two  states  had  in  some  sort  made 
compliance.  Georgia  had  failed  to  act  at  all,  but  only 
Rhode  Island,  which  derived  a  considerable  revenue 

1  Journals,  VIII,  48  ;  Hunt's  "Madison's  Writings,11  I,  316. 


90  OLIVER   ELLSWORTH 

from  imports  intended  for  Connecticut,  had  positively 
refused.  A  committee  was  appointed  to  visit  the 
little  state  and  urge  the  scheme  upon  her  governors. 
But  when  the  emissaries  were  about  to  take  their 
departure,  word  came  that  Virginia  also,  having  once 
consented  to  the  impost,  had  now  reversed  her 
action. 

This  was  at  the  end  of  1782.  Before  a  week  of  the 
new  year  had  passed,  a  committee  of  officers  from  the 
army  at  Newburgh,  N.Y.,  arrived  in  Philadelphia  with 
the  solemnest  and  sternest  of  appeals  for  payment 
of  the  troops.  Not  even  the  constantly  recurring 
rumors  of  peace  with  independence  could  long  divert 
the  members  of  Congress  from  what,  in  a  letter  home, 
Madison  described  as  the  cloud  that  was  lowering  on 
the  North  River.  The  one  stubborn  fact  that  over 
hung  and  darkened  all  things  was  the  fact  of  bank 
ruptcy.  From  this  time  until  the  middle  of  April, 
save  for  certain  necessary  interruptions  to  attend  to 
the  peace  treaty,  Congress,  now  by  special  com 
mittees,  now  by  a  general  committee  of  the  states, 
now  in  committee  of  the  whole,  was  searching  for 
a  path  to  solvency  and  honor. 

The  debate  took  a  wide  range,  for  in  the  general 
problem  there  were  many  specific  perplexities.  The 
army  demanded  not  merely  present  pay,  but  security 
for  arrears,  compensation  for  deficiencies  in  rations 
and  clothing,  and  commutation  of  the  half-pay  for  life, 
which  Congress  had  already  voted,  into  an  equivalent 
in  gross.  There  was  the  foreign  debt,  and  Morris's 
inability  to  negotiate  new  loans  until  the  old  were 
somehow  secured  and  interest  provided.  There  were 
the  various  forms  of  the  domestic  debt,  with  the  claims 


THE   CONTINENTAL   CONGRESS  91 

of  different  classes  of  creditors  and  the  frequently  con 
flicting  interests  of  the  various  states.  But  it  all  came 
back  to  the  main  question,  How  could  money  be 
obtained?  Hamilton,  Madison,  and  Wilson  at  once 
declared  that  nothing  would  serve  but  general  or  Con 
tinental  taxes,  whether  by  impost  or  excise.  The 
states  must  grant  this  power  to  Congress,  or  the  Con 
federacy,  now  that  it  had  won  its  independence,  would 
fail  from  sheer  and  ignominious  weakness.  But  a 
group  of  lesser  men,  led  by  Rutledge,  and  including 
Madison's  own  colleagues  from  Virginia,  opposed  this 
policy  at  every  turn.  They  would  adhere  to  the  Arti 
cles  ;  they  feared  and  distrusted  tyranny  at  home  quite 
as  much  as  they  had  feared  and  distrusted  it  in  the 
Parliament  and  the  King  across  the  water;  they 
would  never  consent  to  give  into  the  same  hands 
"  the  purse  and  the  sword."  This  last  was  a  favorite 
catch  phrase. 

Ellsworth's  first  reported  speech  came  on  a  day  of 
general  debate,1  and  Hamilton's  reply,  followed  by 
Madison's  cooler  and  more  cautious  argument,  marks 
the  high  tide  of  the  whole  discussion.  The  question 
was  on  Wilson's  motion,  modified  by  an  amendment 
of  Madison,  "  That  it  is  the  opinion  of  Congress  that 
the  establishment  of  permanent  and  adequate  funds 
to  operate  generally  throughout  the  United  States  is 
indispensably  necessary  for  doing  complete  justice  to 
the  creditors  of  the  United  States,  for  restoring  public 
credit,  and  for  providing  for  the  future  exigencies  of 
the  war."  When  the  two  opposing  views  were  set 
before  the  house,  "  Mr.  Ellsworth  acknowledged  him 
self  to  be  undecided  in  his  opinion ;  that  on  one  side 

1  Jan.  28,  1783. 


92  OLIVER   ELLSWORTH 

he  felt  the  necessity  of  continental  funds  for  making 
good  the  continental  engagements,  but  on  the  other 
desponded  of  a  unanimous  concurrence  of  the  States 
in  such  an  establishment.  He  observed  that  it  was  a 
question  of  great  importance,  how  far  the  federal  Gov1. 
can  or  ought  to  exert  coercion  against  delinquent 
members  of  the  confederacy;  and  that  without  such 
coercion  no  certainty  could  attend  the  constitu 
tional  mode  which  referred  everything  to  the  unan 
imous  punctuality  of  thirteen  different  councils. 
Considering,  therefore,  a  continental  revenue  as  unat 
tainable,  and  periodical  requisitions  from  Congress  as 
inadequate,  he  was  inclined  to  make  trial  of  the  middle 
mode  of  permanent  state  funds,  to  be  provided  at  the 
recommendation  of  Cong8.,  and  appropriated  to  the 
discharge  of  the  common  debt." 1 

Hamilton's  quick  reply  disclosed  the  defect  of  his 
admirable  quality.2  Too  strenuous  in  his  statesman 
ship  to  yield  to  merely  politic  considerations,  and 
neglecting  the  one  ground  on  which  Ellsworth  had 
criticised  his  policy,  viz.  that  it  was  unattainable,  he 
dwelt  at  length  on  the  sure  inadequacy  of  the  other's 
proposal  and  then,  utterly  disregarding  the  suspicions 
of  the  state-rights  party,  boldly  avowed  that  one 
reason  why  he  wished  Congress  to  have  the  power  in 
question  was  because  the  energy  of  the  central  govern 
ment  was,  in  general,  far  too  slight  It  was  not  strong 
enough,  he  said,  to  pervade  the  states  and  draw  them 
into  a  union.  He  considered,  therefore,  that  it  was 
expedient  "  to  introduce  the  influence  of  officers  deriv 
ing  their  emoluments  from  and  consequently  interested 
in  supporting  the  power  of  Congress." 

1  Hunt's  "  Madison's  Writings,"  I,  334.  2  Ibid.,  335. 


THE   CONTINENTAL   CONGRESS  93 

Madison  saw  the  blunder,  and  jotted  down  in  his 
notes,  perhaps  on  the  very  instant :  "  This  remark 
was  imprudent  and  injurious  to  the  cause  which  it  was 
meant  to  serve.  This  influence  was  the  very  source 
of  jealousy  which  rendered  the  states  averse  to  a  reve 
nue  under  collection  as  well  as  appropriation  of  Con 
gress.  All  the  members  of  Congress  who  concurred 
in  any  degree  with  the  states  in  this  jealousy,  smiled  at 
the  disclosure.  Mr.  B(land)  and  still  more  Mr.  L(ee), 
who  were  of  this  number,  took  notice  in  private  con 
versation,  that  Mr.  Hamilton  had  let  out  the  secret."1 
A  moment  later,  when  Madison  himself  rose  to  speak 
for  the  resolution,  he  showed  how  indispensable  to 
such  a  leadership  as  Hamilton's  was  his  own  perfect 
poise,  his  tact  and  courtesy,  his  patient  fairness  with 
all  points  of  view.  These  two,  wittingly  or  not,  had 
already  entered  on  the  task  of  building  for  the  young 
confederacy  a  true  constitution  of  government.  They 
were  trying  now  to  set  in  place  the  only  corner-stone 
from  which  that  edifice  could  possibly  arise.  It  is 
doubtful  if  in  the  long  struggle  with  public  opinion 
which  was  thus  beginning  the  quick  and  darting  genius 
of  Hamilton  would  ever  have  prevailed  had  there  been 
no  Madison  to  smooth  the  way,  to  placate  opposition, 
to  do,  in  fine,  whatever  genius  leaves  to  talents,  indus 
try,  and  judgment,  —  if,  indeed,  these  gifts  in  Madison 
do  not  also  deserve  the  name  of  genius.  Stating  first, 
with  masterly  clearness,  the  problem  of  the  hour,  he 
took  up,  one  by  one,  the  various  plans  suggested,  and 
showed  conclusively  that  none  of  them  would  work  in 
practice  without  that  great  concession  of  the  power 
to  tax  which  state-rights  men  revolted  at.2 

1  Hunt's  "  Madison's  Writings,"  I,  336.  2  Ibid.,  336-340. 


94  OLIVER   ELLSWORTH 

It  is  hard  to  see  how  any  open  mind  could  long  hold 
out  against  his  reasoning ;  and  Ellsworth,  clearly,  was 
one  of  those  whose  minds  were  open.  The  next  day, 
when  Wilson  proposed  an  elaborate  scheme  of  taxation, 
and  Rutledge  responded  with  a  plan  to  ask  the  states 
to  levy  a  duty  of  five  per  cent  on  imports  to  pay  the 
foreign  debt,  each  state  to  be  credited,  on  its  quota  of 
the  debt,  with  such  amounts  as  might  be  gathered 
at  its  ports,  he  criticised  both  proposals. 

"  Mr.  Elseworth  thought  it  wrong,"  Madison  reports,1 
"  to  couple  any  other  objects  with  the  impost ;  that  the 
states  would  give  this  if  anything ;  and  that  if  a  land 
tax  or  an  excise  were  combined  with  it,  the  whole 
scheme  would  fail.  He  thought,  however,  that  some 
modification  of  the  plan  recommended  by  Cong5, 
would  be  necessary.  He  supposed  when  the  benefits 
of  this  Contin1.  revenue  should  be  experienced  it  would 
incline  the  states  to  concur  in  making  additions  to  it. 
He  abetted  the  opposition  of  Mr.  Woolcot 2  to  the 
motion  of  Mr.  Rutledge,  which  proposed  that  each 
State  should  be  credited  for  the  duties  collected 
within  its  ports ;  dwelt  on  the  injustice  of  it,  said 
Connecticut,  before  the  revolution  did  not  import  one- 
fiftieth,  perhaps  not  one-one-hundredth  part  of  the 
merchandise  consumed  within  it,  and  pronounced  that 
such  a  plan  wd.  never  be  agreed  to.  He  concurred  in 
the  expediency  of  new-modelling  the  scheme  of  the 
impost  by  defining  the  period  of  its  existence;3  by 
leaving  to  the  States  the  nomination,  and  to  Congress 

1  Hunt's  "  Madison's  Writings,"  I,  348-349. 

2  Oliver  Wolcott,  Sr.,  his  colleague.    Madison  seems  to  have  had  a  hard 
time  with  New  England  proper  .names.      Gorham  of  Massachusetts,  e.g., 
constantly  appears  as  Ghoram,  and  Ellsworth  as  Elseworth. 

3  The  period  proposed  was  twenty-five  years. 


THE   CONTINENTAL   CONGRESS  95 

the  appointment  of  Collectors,  or  vice  versa ;  and  by  a 
more  determinate  appropriation  of  the  revenue.  The 
first  object  to  which  it  ought  to  be  applied  was,  he 
thought,  the  foreign  debt.  This  object  claimed  a 
preference  as  well  from  the  hope  of  facilitating  further 
aids  from  that  quarter,  as  from  the  disputes  into  wch. 
a  failure  may  embroil  the  U.S.  The  prejudices  agst 
making  a  provision  for  foreign  debts  which  sd.  not 
include  the  domestic  ones  was,  he  thought,  unjust  and 
might  be  satisfied  by  immediately  requiring  a  tax  in 
discharge  of  which  loan-office  certificates  should  be 
receivable.  State  funds  for  the  domestic  debts  would 
be  proper  for  subsequent  consideration.  He  added,  as 
a  further  objection  against  crediting  the  States  for  the 
duties  on  trade  respectively  collected  by  them,  that  a 
mutual  jealousy  of  injuring  their  trade  by  being  fore 
most  in  imposing  such  a  duty  would  prevent  anyone 
from  making  a  beginning." 

He  was  still  inclined  to  a  compromise  position,  but 
the  movement  of  his  mind  was  plainly  toward  the 
policy  of  a  stronger  central  government.  Leaving 
Philadelphia  about  this  time,  he  was  gone  till  April, 
but  very  soon  after  his  return  it  appeared  that  com 
mon  sense,  and  perhaps  also  a  broadening  sense  of  his 
own  duty,  were  fast  overcoming  his  state-rights  scruples. 
During  his  absence,  the  party  in  favor  of  giving  to  the 
government  strength  enough  to  meet  its  obligations 
had  had  the  better  of  it  in  debate.  Events  outside 
had  been  constantly  supplying  them  with  telling  argu 
ments  and  instances.  Morris's  letter,  for  a  while  kept 
secret,  had  been  given  to  the  country.  France,  the 
leading  foreign  creditor,  had  sharply  demanded  that 
Congress  take  some  action  on  her  claims  and  Hoi- 


96  OLIVER   ELLSWORTH 

land's.  The  army's  discontent  had  seemed  for  a  time  to 
be  fast  turning  into  mutiny,  and  Washington,  although 
he  quelled  the  disposition  toward  violence,  plainly 
declared  that  in  his  opinion  his  soldiers'  wrath  was 
just.  By  the  middle  of  April,  Congress  was  brought 
to  favor  a  general  scheme  which  included  both  a 
federal  impost  of  five  per  cent  and  specific  duties  on 
certain  articles  of  general  use.  Future  requisitions  on 
the  states  were  to  be  based  on  population,  instead  of 
land,  which  was  the  basis  fixed  by  the  Articles  ;  and  it 
was  agreed  that  in  estimating  population  five  negro 
slaves  should  count  as  three  white  freemen.  These 
proposals  passed  on  April  18,  and  Ellsworth  voted  for 
them.  He  had  doubtless,  by  this  time,  quite  abandoned 
his  preference  for  permanent  state  funds.  The  pro 
posals,  however,  were  themselves  a  compromise.  They 
fell  so  far  short  of  Hamilton's  desire,  and  he  had  so 
little  hope  in  them,  that  he  would  not  vote  for  them. 
Nevertheless,  he  and  Madison  and  Ellsworth  were 
appointed  a  committee  to  commend  them  to  the  states. 
The  moderate  but  strong  address  they  sent  out  to  the 
legislatures  was  the  work  of  Madison,  but  Ellsworth 
gave  it  his  approval.  A  fortnight  later,  he  wrote  to 
Trumbull : 1 

"A  plan  of  revenue  for  funding  the  public  debt 
which  has  taken  up  much  time  in  Congress  will  be 
immediately  forwarded  for  consideration  of  the  State, 
accompanied  with  the  documents  necessary  to  give  in 
formation  on  the  subject.  As  might  naturally  be 
expected  at  the  close  of  so  long  a  war,  we  find  a  con 
siderable  debt  on  our  hands,  which  all  will  agree  it 
much  concerns  our  national  character  and  prosperity 

1  May  13,  Trumbull  Papers. 


THE   CONTINENTAL   CONGRESS  97 

to  provide  for,  however  various  may  be  the  opinions 
as  to  the  mode  of  doing  it." 

It  is  significant,  too,  that  Ellsworth  should  have 
been  set  at  the  head  of  a  committee  of  nine,  now  at 
last  appointed  to  consider  the  New  York  resolutions, 
which  had  been  before  Congress  more  than  a  year. 
It  was  a  strong  committee,  names  like  Hamilton's  and 
Wilson's  coming  after  Ellsworth's ;  but  there  is  no 
record  of  any  action  taken  on  the  subject  of  a  conven 
tion  while  Ellsworth  remained  chairman.1  This,  how 
ever,  does  not  prove  there  was  none  taken :  for  after 
the  passage  of  the  revenue  measure  Madison's  notes 
grow  scanter,  and  he  is  constantly  referring  us  to  the 
keyhole  glimpses  which  are  all  the  journals  afford.  We 
know  that  in  June,  backed  by  Hamilton,  Ellsworth 
was  urging  Congress  to  take  a  step  essential  to  a 
stronger  union  by  completing  the  transfer  of  Virginia's 
Western  claims  to  the  Confederacy.2 

Meanwhile,  in  foreign  affairs  also,  and  particularly 
in  the  business  occasioned  by  the  peace,  he  had  been 
conspicuously  employed.  Early  in  the  winter,  when  a 
Rhode  Island  delegate  had  wished  permission  to  send 
to  the  governor  of  his  state  certain  extracts  from 
letters  from  Europe,  Ellsworth  and  Hamilton  served 
on  a  committee  which  reported  against  the  proposal.3 
A  few  days  later,  with  Hamilton  and  Madison,  he 
reported  in  favor  of  a  treaty  of  amity  and  commerce 
with  the  Netherlands.  In  this  report,  one  of  the 
longest  ever  made  to  the  Congress,  there  was  enclosed 

1  Bancroft's  "  United  States,"  VI,  80,  99. 

a  Hunt's  "  Madison's  Writings,"  I,  474. 

3  Journals,  VIII,  88-89.  He  was  also  on  the  committee  which  reported 
against  a  claim  of  certain  Rhode  Island  officers  based  on  the  depreciation 
of  the  money  they  were  paid  in. 


98  OLIVER   ELLSWORTH 

the  treaty  itself  and  a  series  of  forms  and  blanks  for  the 
various  interchanges  of  officials  and  of  courtesies  which 
it  called  for.  "  Both  the  Committee  and  Congress," 
Madison  remarks,  "  were  exceedingly  chagrined  at  the 
extreme  incorrectness  of  these  national  acts."  The  de 
bate  that  followed  led  to  a  motion  for  the  purchase  of 
a  few  books  of  reference  for  the  use  of  Congress  in 
such  cases,  and  that  motion  was,  no  doubt,  the  begin 
ning  of  the  history  of  the  libraries  of  Congress 
and  the  department  of  state.  But  it  was  not  the 
actual  beginning  of  those  libraries.  Not  even  "a 
few  hundred  pounds"  could  be  spared  for  such  a 
purpose.1 

The  first  of  May,  while  Congress  still  had  nothing 
of  the  peace  treaty  but  the  preliminaries,  Ellsworth, 
Hamilton,  and  Rutledge  reported,  in  response  to  a  letter 
from  John  Adams,  instructions  favorable  to  a  treaty  of 
amity  and  commerce  with  Great  Britain.2  Again  with 
Hamilton  and  Madison,  and  with  Wilson  also,  Ells 
worth  concurred  in  a  report  directing  Washington  to 
occupy  the  frontier  forts  so  soon  as  the  British  should 
give  them  up.8  When  the  provisions  of  the  treaty 
were  fully  known,  he  and  Hamilton  advocated  a  call 
on  the  states  to  carry  out  the  recommendation  concern 
ing  the  Tories,4  and  they  were  both  on  a  committee 
which  drew  up  an  address  to  the  states,  urging  them 
to  conform  in  all  good  faith  to  such  provisions  as  had 
to  do  with  confiscations  and  with  debts  due  from 

1  Journals,  91,  109;  Secret  Journals,  III,  289-318;  Hunt's  "Madison's 
Writings,"  I,  318-319. 

2  Secret  Journals,  III,  340.     Madison  ridicules  this  letter  of  Adams  for 
its  palpable  self-seeking  and  self-praise. 

8  May  12,  Journals,  VIII,  259. 

4  Hunt's  "Madison's  Writings,"  I,  463. 


THE   CONTINENTAL   CONGRESS  99 

Americans  to  Britons.1  Clearly,  he  was  one  of  those 
in  whom  the  war  had  left  but  little  rancor.  He  was  also 
one  of  those  who  felt,  even  at  this  time,  that  the  United 
States  had  little  to  gain  from  the  lowering  of  England's 
rank  among  the  nations.  Writing  to  Trumbull,2  he 
argued  that  England's  debt  and  the  great  expense  of 
her  peace  establishment,  which  in  his  judgment  had 
forced  her  to  treat  with  America,  would  also  probably 
insure  her  good  behavior  for  a  long  time  yet  to  come ; 
and  he  added : 

"  Neither  the  safety  of  this  country  or  the  balance 
of  power  of  Europe  requires  that  Great  Britain  should 
be  at  all  more  reduced  than  in  fact  she  is ;  and  it  is 
(only)  by  avoiding  that  distraction  of  councils  and 
corruption  of  manners  that  have  brought  her  down, 
that  America  can  hope  to  rise  or  long  enjoy  the  bless 
ings  of  a  revolution,  which,  under  the  auspices  of 
Heaven,  she  has  gloriously  accomplished." 

Here  was  a  temper  prophetic  of  the  federalist  to  be ; 
the  revolutionist  as  well  as  the  state-rights  man  was 
moving  with  the  current  of  events,  open-eyed  to  new 
conditions.  No  sentimentalist,  he  would  let  the  dead 
past  bury  its  dead. 

On  the  question  of  ratifying  the  provisional  articles 
without  waiting  for  the  definitive  treaty,  "  Mr.  Ells 
worth,"  Madison  reports,3  "  was  strenuous  on  the 
obligation  and  policy  of  going  into  an  immediate  ex 
ecution  of  the  treaty.  He  supposed  that  a  generous 
and  ready  execution  on  our  part  wd.  accelerate  the  like 
on  the  other  part."  For  some  reason,  when  a  treaty 

1  Journals,  VIII,  266-268  ;  Secret  Journals,  III,  355. 

2  May  13,  Trumbull  Papers. 

8  April  14,  Hunt's  "  Madison's  Writings,"  I,  450. 


100  OLIVER   ELLSWORTH 

of  amity  and  commerce  with  Russia  was  up,  he  made 
and  carried,  Madison  opposing,  a  motion  to  limit  it  to 
twenty-five  years.1  But  his  views  on  foreign  affairs 
seem  to  have  been,  as  a  rule,  sane  and  unprovincial, 
and  not  without  enlightenment  and  insight.  Early 
in  May,  he  wrote  to  his  colleague,  Wolcott,  who  had 
gone  home : 2 

"  Nothing  yet  appears  to  induce  a  suspicion  that  the 
treaty  will  fail  of  being  carried  into  effect,  on  both 
sides,  as  fast  as  the  nature  of  the  case  will  admit. 
Certainly,  we  cannot  wish  to  see  it  violated  or  an 
nulled  ;  nor  has  Great  Britain  so  much  reason  to  be 
dissatisfied,  under  all  circumstances,  as  North,  Fox, 
and  their  partisans  pretend,  —  for  their  object  probably 
is  to  hunt  down  the  present  minister,  and  to  transfer 
the  popular  odium  from  the  criminal  to  the  execu 
tioner.  If  Great  Britain,  induced  thereto  by  the  folly 
of  a  former  administration,  must  make  us  independent 
of  herself,  it  is  wise  in  her  to  do  so  with  grace,  and  in  a 
manner  that  shall  also  keep  us  independent  of  France. 
This  principle  was,  no  doubt,  well  explained  and  en 
forced  by  Messrs.  Adams  and  Jay.  But  it  would  have 
been  a  weakness  in  a  British  minister  not  to  have 
adopted  it,  and  in  as  large  an  extent  as  in  the  pres 
ent  treaty  seems  to  have  been  done,  even  as  to  the 
Loyalists,  who  are  said  to  have  been  sacrificed  for 
nothing." 

He  was  no  such  violent  Anglophobe  as  Rutledge 
and  others  were  plainly  showing  themselves  to  be,  and 
had  not  in  him  the  making  of  a  partisan  of  France ; 
but  neither  was  he,  like  Hamilton,  enamored  of  the 
British  system.  When  news  came  of  the  famous 

1  Secret  Journals,  III,  350-354.  2  May  6,  Wood  Ms. 


THE   CONTINENTAL  CONGRESS  IOI 

coalition  of  Lord  North  with  the  Whigs,  he  wrote  to 
Trumbull : l 

"  A  packet  just  arrived  at  New  York  from  Fal- 
mouth,  it  is  represented,  brings  information  that  the 
Definitive  Treaty  was  signed,  and  that  the  British 
were  to  leave  this  coast,  at  farthest,  by  the  first  of 
August.  The  packet  also  brings  a  list  of  the  new 
British  ministry,  established  the  second  of  April,  which 
I  take  the  liberty  to  enclose.  From  the  strange  coali 
tion  of  which  it  is  formed,  there  is  little  reason  to 
doubt  but  that  another  change  of  a  partial  nature  will 
follow,  as  soon  as  the  present  convulsive  state  of  that 
nation  shall  have  subsided.  Lord  North,  who  is  the 
fixed  favorite  of  his  Sovereign,  and  a  man  of  the  most 
system,  business, and  address,  will  early  find  means  to  lay 
aside  Mr.  Fox  and  his  coadjutors  when  he  can  well  do 
without  them,  as  he  has  already  done  with  one  set  of  op 
ponents,  whom  he  let  come  forward  to  perish  in  the  odium 
of  exciting  measures  which  he  had  rendered  necessary." 

He  served,  again  with  Hamilton  and  Madison  for 
colleagues,  on  the  committee  which  had  in  charge  the 
general  subject  of  neutrality  agreements.2  But  the 
most  distinguished  conjunction  of  the  three  names  was 
on  still  another  committee,  appointed  early  in  April, 
"  to  provide  a  system  for  foreign  affairs,  for  military  and 
naval  establishments,  and  also  to  carry  into  execution 
the  regulation  of  weights  and  measures,  and  other 
articles  of  the  Confederation  not  attended  to  during 
the  war." 3  The  task  was  nothing  less  than  the  devis 
ing  of  a  complete  permanent  system  of  administration. 

He  continued  to  be  called  on  for  such  high  services 

1  June  4,  Trumbull  Papers.  2  Secret  Journals,  III,  366-368. 

8  Hunt's  "  Madison's  Writings,"  I,  441. 


102  OLIVER   ELLSWORTH 

throughout  the  spring,  and  until  the  busy  session 
came  to  its  humiliating  close.  He  himself  does  not 
seem  to  have  foreseen  or  dreaded  any  such  emeute  as 
that  which  drove  the  delegates  away  from  Philadelphia. 
His  letters  contain  no  such  gloomy  forebodings  of  the 
conduct  of  the  unpaid  troops  as  Madison's  are  filled 
with.  He  had  written  to  Wolcott,  early  in  May,1  that 
three  months'  pay  would  probably  be  made  to  the  army 
on  disbandment,  one-third  in  cash,  the  rest  in  Mr. 
Morris's  notes ;  and  that  Morris  would  remain  in  office 
until  all  his  engagements  should  be  fulfilled.  When 
the  question  arose,  whether  to  discharge  the  troops 
or  merely  give  them  furloughs,  he  was  for  discharg 
ing  them  at  once.2  Even  so  late  as  June  18,  1783, 
he  was  writing  to  Trumbull,  apparently  without  un 
easiness  : 8 

"  The  furloughed  part  of  the  army  are  on  their  way 
home.  Some  have  arrived  here  from  the  southward. 
They  receive  three  months'  pay,  but  all  in  Mr.  Morris's 
notes,  which  run  six  months."  Yet  it  was  but  three 
days  later  that  a  band  of  about  five  hundred  mutinous 
soldiers  of  the  Pennsylvania  line  surrounded  the  State 
House,  where  Congress  was  sitting,  and  with  arms  in 
their  hands  demanded  a  settlement  of  their  accounts. 
Sitting  under  the  same  roof  was  the  executive  council 
of  Pennsylvania;  and  to  this  body  Congress  sent  at 
once  a  committee  —  fiamilton,  Ellsworth,  and  Peters 
—  to  take  order  for  the  calling  out  of  the  state  militia. 
But  the  Council  would  not  act.  Congress  finally  ad 
journing,  the  troops  permitted  the  members  to  disperse. 

1  May  6,  Wood  Ms. 

2  May  20,  Hunt's  "  Madison's  Writings,"  I,  468. 
8  Trumbull  Papers. 


THE   CONTINENTAL   CONGRESS  103 

Reassembling  that  evening,  they  voted  that  in  case 
no  means  should  be  found  to  put  down  the  rioting  the 
President  should  summon  them  to  meet  at  Princeton 
or  at  Trenton.  Hamilton  and  Ellsworth,  serving  as  a 
committee  of  conference  with  the  Pennsylvania  author 
ities,  failed  to  bring  them  to  any  determined  action, 
and  the  President  issued  his  summons.  At  the  end  of 
June,  therefore,  Congress  reassembled  at  Princeton. 
Hamilton,  for  the  committee,  made  a  report  which 
seemed  to  reflect  severely  on  the  Pennsylvania  author 
ities,  and  when  the  council  complained  of  it  Ellsworth 
merely  moved  a  resolve  which  exonerated  them  from 
any  active  part  in  the  insult  to  Congress.  Another  com 
mittee —  Hamilton,  Ellsworth,  and  Bland  —  reported 
an  order  to  General  Howe  to  march  on  Philadelphia.1 
But  Washington,  deeply  mortified  at  what  had  hap 
pened,  was  already  taking  measures  to  put  down  the 
mutiny.  Congress  was  not  further  molested,  and  Ells 
worth  remained  at  Princeton  about  a  fortnight  longer. 
Late  in  July,  Benjamin  and  Samuel  Huntington 
arrived,  and  Samuel  Huntington  took  his  place  on 
the  committee  to  consider  the  proposal  of  a  general 
convention.2 

This  was  the  end  of  his  service  in  Congress. 
Writing  to  Trumbull  on  July  io,8  he  gave,  in  his 
usual  matter-of-fact  way,  a  moderate  version  of  what 
had  happened,  and  added : 

"  How  long  Congress  will  remain  here  is  uncertain. 

1  Journals,  VIII,  279-287,  292  ;    Hunt's  "  Madison's  Writings,"  I,  482, 
484 ;  Bancroft's  "United  States,"  VI,  97  ;  Diplomatic  Correspondence,  1783- 
1789,  I,  passim. 

2  For  other  services  of  Ellsworth  in  Congress  in  this  period,  see  Journals, 
VIII,  91,  124-125,  176-177,  261. 

8  Trumbull  Papers. 


104  OLIVER   ELLSWORTH 

They  will  hardly  return  to  Philadelphia,  without 
some  assurance  of  protection,  or  even  then  with  the 
intention  to  stay  longer  than  till  accommodations 
shall  be  elsewhere  prepared  for  a  fixed  residence.1 
But,  Sir,  it  will  soon  be  of  very  little  consequence 
where  Congress  go,  if  they  are  not  made  respectable, 
as  well  as  responsible,  which  can  never  be  done  with 
out  giving  them  a  power  to  perform  engagements,  as 
well  as  to  make  them.  It  was,  indeed,  intended  to 
have  given  them  this  power  in  the  Confederation,  by 
declaring  their  contracts  and  requisitions  for  the 
common  defence  sacredly  binding  on  the  States ; 
but  in  practice  it  amounts  to  nothing.  Most  of  the 
States  recognize  these  contracts  and  comply  with  the 
requisitions  so  far  only  as  suits  their  particular  opinion 
and  convenience.  And  they  are  the  more  disposed, 
at  present,  to  go  on  in  this  way,  from  the  irregularities 
it  has  already  introduced,  and  a  mistaken  idea  that 
the  danger  is  over,  —  not  duly  reflecting  on  the 
calamities  of  a  disunion  and  anarchy,  or  their  rapid 
approach  to  such  a  state.  There  must,  Sir,  be  a 
revenue  somehow  established,  that  can  be  relied  on, 
and  applied  for  national  purposes,  as  the  exigencies 
arise,  independent  of  the  will  or  views  of  a  single 
State,  or  it  will  be  impossible  to  support  national 
faith  or  national  existence.  The  power  of  Congress 
must  be  adequate  to  the  purposes  of  their  constitution. 
It  is  possible,  there  may  be  abuses  and  misapplica 
tion,  still  it  is  better  to  hazard  something,  than  to 
hazard  all." 

1  Ellsworth  had  been  on  the  committee  to  consider  the  question  of  per 
manent  residence,  but  the  subject  was  postponed  until  autumn.  Journals, 
VIII,  271. 


THE   CONTINENTAL  CONGRESS  105 

It  is  not  surprising  that  he  was  unwilling  to  come 
back  to  Congress ; 1  or  that,  the  next  year,  he  also 
declined  an  election  to  the  Board  of  Treasury,  a  com 
mission  set  up  for  the  management  of  the  finances 
in  place  of  Robert  Morris,  who  had  finally  with 
drawn,  or,  as  he  himself  probably  considered,  escaped.2 
The  choice  of  Ellsworth  to  this  office  by  his  former 
associates  was  a  tribute  to  his  capacity,  but  not  to 
his  shrewdness.  His  severe  judgment  of  the  Con 
federacy  is  even  more  convincing  than  Hamilton's, 
who  went  home  in  complete  despair  of  it;  for  Ells 
worth,  never  given  to  crossing  bridges  until  he  got 
to  them,  had  come  to  his  conclusions  slowly.  Always 
accepting  dutifully  the  tasks  assigned  him,  he  had 
done  his  part  well  in  the  civil  business  of  the  struggle 
for  independence ;  but  holding,  doubtless,  that  to 
each  day  its  own  evil  was  sufficient,  he  had  not 
pressed  forward  in  time  of  war  to  grapple  with  the 
problems  of  the  hoped-for  peace.  Now,  however,  that 
peace  was  come,  even  his  unhasting  and  conservative 
intelligence  saw  clearly  the  necessity  of  changes  the 
most  radical.  Perhaps  his  gift  of  shrewd  and  prac 
tical  analysis  enabled  him  to  see  also  that  the  time 
was  not  yet  quite  at  hand ;  or  perhaps,  on  the  other 
hand,  we  must  conclude  that  he  was  lacking  in  that 
rare,  militant  ardor  of  reform  which  Hamilton  was 
so  abundantly  endowed  with.  At  any  rate,  until  the 
time  was  fully  come,  and  through  the  tireless  labors 

1  In  May,  1783,  he  was  elected  for  the  year  beginning  Nov.  30,  1783. 
He  resigned,  however,  and  another  was  elected  in  his  place.     Roll  of  State 
Officers  and  Members  of  General  Assembly  of  Connecticut,  460. 

2  The  Board  was  instituted  May  28,  1784,  and  six  days  later  Daniel  of 
St.  Thomas  Jenifer,  Ellsworth,  and  William  Denning  were  elected  mem 
bers.     Journals,  IX,  255-256,  309. 


106  OLIVER   ELLSWORTH 

of  Madison  and  Hamilton  and  Washington  and  a  half- 
dozen  other  kindred  spirits  a  great  occasion  was  pre 
pared,  Ellsworth  had  no  conspicuous  part  in  the 
movements  for  a  stronger  constitution.  Instead,  he 
passed  quietly  back  into  the  labors  of  his  profession 
and  the  service  of  his  state. 


CHAPTER   IV 

THE  GREAT  CONVENTION 

His  state  was  by  no  means  disposed  to  part  with 
his  services.  It  is  a  question  whether,  in  any  repre 
sentative  government  anywhere,  the  terms  of  public 
servants  have  ever  been  shorter,  or  their  actual  tenure 
more  protracted,  than  in  the  colony  of  Connecticut. 
Officials  both  of  the  towns  and  of  the  colony  were 
elected  every  year ;  but  a  good  man,  once  elected,  was, 
as  a  rule,  reelected  until  he  died  or  resigned  or  moved 
up  higher.1  This  democracy  was  not  fickle.  The 
usage  continued  for  some  time  after  the  Revolution, 
and  until,  by  the  increase  of  population,  the  coming  in 
of  foreign  elements,  the  growth  of  cities,  the  rise  of 
parties,  and  perhaps  by  other  causes,  the  political  life 
of  Connecticut  and  of  all  New  England  was  gradually 
altered.  If  Ellsworth  had  never  again  entered  the 
service  of  the  United  States,  the  chances  are  that 
his  own  people  would  have  continued  to  choose  him 
to  higher  and  higher  places  in  their  state  government 
so  long  as  he  was  willing  to  accept  them. 

At  the  time  of  his  retirement  from  Congress  he 
held,  it  will  be  remembered,  two  not  unimportant 
offices  at  home.  He  was  still  a  member  of  the  gov 
ernor's  council  and  state's  attorney  for  Hartford 
County.  In  1785,  however,  he  accepted  a  judicial 
office  of  such  a  character  that  he  could  not  continue 

1  See  Sherman  in  Constitutional  Convention, ft  Documentary  History  of 
the  Constitution,"  III,  216-217. 

107 


108  OLIVER   ELLSWORTH 

to  hold  the  other  two.  For  a  good  many  years,  the 
General  Assembly  had  been  from  time  to  time  devolv 
ing  some  of  its  judicial  functions  upon  separate  tribu 
nals.1  To  that  end,  a  "  Particular  Court "  had  been 
set  up  as  far  back  as  1638.  It  was  succeeded  in  1666 
by  a  "  Court  of  Assistants,"  made  up  from  the  council, 
and  this  in  turn  gave  way,  in  1 71 1,  to  a  Superior  Court 
Meanwhile,  town  and  county  courts  had  also  been 
established.  In  1784,  a  law  was  passed  which  consti 
tuted  the  council,  with  the  lieutenant-governor,  a 
Supreme  Court  of  Errors,  and  it  was  in  this  tribunal 
that  Ellsworth's  first  judicial  services  were  rendered. 
Soon  afterward,  however,  he  was  chosen  also  to  the 
Superior  Court,  and  then,  a  law  being  passed  to  prevent 
the  same  person  from  sitting  in  both  the  court  and 
the  council,  he  retired  from  the  council.2  About  the 
same  time,  Jesse  Root,  who  had  taught  him  law,  suc 
ceeded  him  as  state's  attorney  for  Hartford  County. 
For  the  next  four  years,  his  only  office,  apart  from  one 
which  for  a  few  months  took  him  back  again  to  Phila 
delphia,  was  his  place  on  the  bench  of  the  Superior 
Court.  The  court  consisted  at  this  time  of  a  chief 
judge  and  four  associate  judges;  and  Roger  Sherman 
was  one  of  the  associates. 

It  is  to  be  feared  that  only  lawyers  would  find  much 

1  In  October,  1783,  as  chairman  of  a  special  committee  of  the  General 
Assembly,  —  presumably  a  joint  committee  of  both  houses,  —  Ellsworth 
reported  adversely  on  a  proposal  to  relieve  the  legislature  of  a  part  of  its 
business  by  referring  various  petitions  and  memorials  to  some  other  tri 
bunal.     Trumbull  Papers. 

2  Loomis  and  Calhoun,  u  Judicial  and  Civil  History  of  Connecticut "  ; 
Johnston's  "  Connecticut,"  189-190.     From  a  letter  of  Ellsworth  to  Trum 
bull,  written  from  Philadelphia,  and  now  in  the  library  of  the  Connecticut 
Historical  Society  at  Hartford,  it  appears  that  in  March,  1780,  he  declined 
an  appointment  to  the  Superior  Court  on  the  ground  of  ill  health. 


THE    GREAT   CONVENTION  109 

matter  of  interest  in  Ellsworth's  career  as  a  member 
of  his  state's  judiciary.  A  few  great  judges  and  famous 
causes  apart,  the  judicial  side  even  of  our  national  his 
tory  fails  to  arouse  in  laymen  the  interest  it  deserves. 
The  development  of  our  state  courts  is  a  chapter  of 
our  institutional  life  that  is  not  yet  written ;  and  if  it 
were  written,  it  would  probably  be  but  little  read.  To 
say  that  the  Superior  Court  was  a  busy  tribunal,  with 
a  wide  and  various  jurisdiction,  both  appellate  and 
original,  that  this  was  a  formative  period  in  the  juris 
prudence  of  Connecticut,  and  that  Ellsworth's  opinions, 
so  far  as  they  were  recorded,  sustain  his  reputation  as 
a  good  lawyer  and  a  just  and  able  judge  —  this,  per 
haps,  is  to  set  down  all  that  any  but  a  very  few  readers 
would  care  to  learn.  There  were,  however,  at  least  two 
classes  of  cases  that  came  before  him  and  his  brother 
judges  concerning  which  a  word  more  should  be  said ; 
for  they  presented  to  the  court  important  opportunities 
to  choose  between  the  old  and  the  new.  It  could 
either  adhere  to  the  provincial  and  archaic  in  the  law 
and  usage  of  the  commonwealth,  or  it  could  by  its 
decisions  bring  Connecticut's  procedure  in  line  with 
modern  tendencies.  There  were  criminal  causes  in 
volving  punishments  which  would  now  seem  barbarous 
and  cruel ;  and  there  were  causes,  both  criminal  and 
civil,  which  brought  out  clearly  the  question  of  Con 
necticut's  attitude  toward  the  common  law. 

Alexander  Johnston  contends,  with  an  uncharac 
teristic  warmth,  that  the  Blue  Laws  of  Connecticut 
ought  never  to  have  been  made  the  standard  illustra 
tion  of  puritanic  narrowness  and  tyranny  which  to 
most  Americans  they  still  remain.1  Perhaps  he  is  so 

1  Johnston's  "Connecticut,"  105-106. 


HO  OLIVER   ELLSWORTH 

far  right  that  they  ought  not  to  be  invidiously  distin 
guished  from  the  criminal  and  sumptuary  laws  of  the 
other  New  England  colonies,  and  of  other  countries, 
which  belong  to  the  same  period  of  hard  and  fast  ideas 
in  law,  morals,  and  religion.  But  to  the  present  age 
they  do  seem,  nevertheless,  absurdly  inquisitorial  and 
excessively  severe.  There  were  too  many  capital 
offences ;  lesser  crimes  were  punished  in  ways  that 
strike  us  now  as  harsh,  unreasonable,  absurd;  and 
laxities  now  entirely  disregarded  were  treated  as 
crimes.  By  the  end  of  the  Revolution,  the  code  was 
somewhat  moderated  by  statute,  and  also,  no  doubt, 
tempered  with  mercy  and  discretion  in  the  courts.  As 
in  old  England,  some  archaic  laws,  reflecting  past  con 
ditions,  were  probably  left  unenforced,  or  even  forgotten. 
Nevertheless,  while  Ellsworth  was  on  the  bench  in 
Connecticut,  some  severe  and  curious  sentences  were 
handed  down.  At  a  session  of  the  Supreme  Court  in 
January,  1785,  for  instance,  one  Moses  Parker,  con 
victed  of  horse-stealing,  was  condemned  "  to  sit  on  the 
wooden  horse  half  an  hour;  to  receive  fifteen  stripes, 
pay  a  fine  of  £10]  be  confined  in  the  gaol  and  the 
work  house  three  months ;  and  every  Monday  morn 
ing,  for  the  first  month,  to  receive  ten  stripes,  and  sit 
on  the  wooden  horse  as  aforesaid." l  The  ride  on  the 
wooden  horse  was  probably  the  least  severe  of  this 
choice  assortment  of  penalties ;  for  the  instrument  of 
torture  was  nothing  worse  than  a  log  of  wood,  sup 
ported  by  four  legs.  The  criminal  took  his  ride  in 
public,  booted  and  spurred,  usually  before  a  large  crowd 
of  amused  spectators.  At  the  same  session,  Moses 
Lusk,  for  counterfeiting,  was  also  sentenced  to  be 

1  Van  Santvoord,  222,  and  note. 


THE   GREAT  CONVENTION  ill 

whipped,  fined,  and  imprisoned,  and  Judah  Benjamin, 
a  polygamist,  received  a  sentence  even  harsher  than 
Hester  Prynne's  in  Hawthorne's  "  Scarlet  Letter."  Ten 
stripes  were  laid  upon  his  back ;  the  shameful  "  A  " 
was  branded  on  his  forehead ;  and  he  was  ordered  to 
wear  a  halter  about  his  neck  so  long  as  he  should 
tarry  in  Connecticut,  on  penalty  of  thirty  stripes  if 
he  were  ever  found  without  it. 

Save  that  the  tendency  of  the  times  was  away  from 
such  severity,  it  is  hardly  possible  to  define  the  gen 
eral  attitude  of  Ellsworth  and  his  fellows  toward  these 
rigorous  laws.  In  at  least  one  case,  however,  the 
court  declined  to  be  governed  by  the  old  puritanic 
usage.  In  a  civil  suit  brought  on  a  promissory  note,1 
the  defence  set  up  was  that  the  instrument  had  been 
executed  at  two  o'clock  in  the  morning  of  the  Sabbath 
day.  As  no  statute  was  clearly  violated,  and  as  it  ap 
peared  that  the  note  was  given  to  release  from  prison 
a  brother  of  the  defendant,  the  court  held  it  valid. 

But  for  such  advances  as  Connecticut  was  at  this 
time  making  in  the  administration  of  justice  she  was 
more  indebted  to  a  young  lawyer  struggling  into  prac 
tice  than  to  any  of  her  judges.  Beginning  with  two 
or  three  cases  tried  in  1785,  Ephraim  Kirby  was 
making  for  the  Superior  Court  the  first  fairly  thor 
oughgoing  reports  of  judicial  decisions  ever  published 
in  this  country.  His  first  volume,2  covering  substan 
tially  Ellsworth's  term  of  service,  closed  with  1788, 
and  there  was  no  second ;  but  he  had,  of  course,  his 
successors.  He  was  greatly  aided  in  his  pioneer 
enterprise  by  a  law  passed  in  1785,  which  required 
the  judges  to  write  out  their  decisions  whenever  they 

1  Carpenter  vs.  Crane,  i  Root's  Reports,  98.  2  Published  1789. 


112  OLIVER   ELLSWORTH 

turned  on  a  point  of  law.  No  one  in  the  least  familiar 
with  the  use  now  made  of  many  series  of  printed  re 
ports  needs  to  be  told  the  value  of  the  practice  which 
was  thus  introduced ;  but  Kirby  himself  has  described 
in  his  preface  a  troublesome  confusion,  somewhat 
peculiar  to  Connecticut,  which  reporting  doubtless 
helped  the  judges  to  be  rid  of.  "Our  courts,"  he 
writes,  "were  still  in  a  state  of  embarrassment,  sensi 
ble  that  the  common  law  of  England,  though  a  highly 
improved  system,  was  not  fully  applicable  to  our  situ 
ation  ;  but  no  provision  being  made  to  preserve  and 
publish  proper  histories  of  their  adjudications,  every 
attempt  of  the  judges  to  run  the  line  of  distinction 
between  what  was  applicable  and  what  was  not, 
proved  abortive.  For  the  principles  of  the  decisions 
were  soon  forgot  or  misunderstood,  or  erroneously 
reported  from  memory.  Hence  arose  confusion  in  the 
determination  of  our  courts,  the  rules  of  property 
became  uncertain,  and  litigation  proportionately 
increased."1 

One  doctrine  was,  that  the  law  of  Connecticut 
was  "derived  from  the  law  of  nature  and  revelation  ";2 
and  there  were  certain  decisions  rendered  directly 
contrary  to  common  law  principles.  In  several  of 
these  cases,  Ellsworth  was  the  spokesman  of  the  court. 
But  other  decisions  not  only  recognized  the  common 
law  but  applied  it  "  with  strict  and  technical  pre 
cision."3  The  best  example  is  the  case  of  Hart  vs. 
Smith,4  in  which  the  court  held  that  assumpsit  would 
not  lie  to  recover  money  paid  by  mistake  in  settling 
an  account.  In  this  particular  case,  Ellsworth  dis- 

1  For  Kirby,  see  Van  Santvoord,  218-219.         8  Van  Santvoord,  216. 

2  Root's  Reports,  Preface.  4  Kirby,  127. 


THE   GREAT   CONVENTION  113 

sented,  and  took  a  broader  view,  now  generally 
accepted.  His  opinion  on  the  question  of  what 
authority  the  common  law  of  England  had  in  Con 
necticut  does  not  anywhere  clearly  appear. 

In  one  account  of  the  state's  judicial  history,  he  is 
eulogized  as  probably  the  ablest  of  all  her  judges.1 
But  for  this  high  estimate  the  single  volume  of  Kirby 
and  a  few  memoranda  by  Judge  Root,  who  also  es 
sayed  reporting,  can  hardly  have  constituted  the  sole 
material ;  it  was  based  also,  no  doubt,  on  Ellsworth's 
services  in  a  greater  tribunal,  and  perhaps  on  a  sur 
vey  of  his  whole  career. 

Two  biographers2  have  chosen  the  same  decision 
to  display  his  quality  as  a  state-court  judge.  The 
case3  involved  the  question  of  a  married  woman's 
right  to  devise  her  real  estate  to  her  husband,  and 
Ellsworth  took  at  the  outset  the  ground  that  the  right 
to  devise  is  a  municipal  and  not  a  natural  right.  He 
then  proceeded: 

"  Admitting,  however,  that  a  right  of  devising 
estate  was  a  natural  right,  it  would  not  follow  that 
a  feme-covert  has  it,  though  there  be  no  statute  to 
take  it  away.  Many  natural  rights  are  controlled  by 
long  use  and  custom,  which  may  be  evincive  of  com 
mon  consent,  and  acquire,  to  every  purpose,  the  force 
of  law.  Others  are  controlled  by  the  reason  of  the 
case,  arising  out  of  some  special  relation  or  condition. 
We  have  no  statute  to  divest  a  feme-covert  of  her  per 
sonal  estate ;  and  yet  nobody  doubts  but,  by  the  act 
or  condition  of  coverture,  it  becomes  the  husband's ; 

1  Loomis  and  Calhoun,  176-177. 

2  Flanders  and  Van  Santvoord. 

8  Adams  vs.  Kellogg,  Kirby,  195,  438. 


114  OLIVER   ELLSWORTH 

nor  have  we  any  that  she  shall  not  contract  and  bind 
her  person  and  estate,  as  a  feme-sole  may ;  yet  she 
cannot  do  it.  It  cannot,  then,  be  inferred  that  a  feme- 
covert  has  power  to  devise  an  estate,  from  the  score  of 
natural  right.  As  to  her  supposed  common  law  right 
to  devise  her  estate,  there  has  not  been  a  custom  or 
any  adjudications  to  found  it  upon,  either  in  this 
country  or  that  from  which  we  emigrated."  And  he 
went  on  to  show,  by  briefly  tracing  the  history  of 
devises  by  women,  that  neither  the  common  nor  the 
statute  law  conceded  to  feme-coverts  the  right  in  ques 
tion.  The  usage  among  the  ancient  Romans  he 
attributes  to  their  general  notions  of  marriage ;  the  tie 
was  lighter  than  in  Christian  countries,  and  the 
woman  freer  in  all  her  relations  with  her  husband 
and  society.  His  ending  deals  very  broadly  with 
the  considerations  of  policy  and  of  justice  involved 
in  the  controversy. 

"  With  regard  to  the  policy  of  extending  such 
a  power  to  feme-coverts,  it  may  be  remarked,  that 
there  is  not  the  same  reason  for  it  as  there  was  for 
the  statute  empowering  a  husband  to  sell  his  wife's 
lands  with  her  consent.  From  a  sale  of  them  she 
might  have  comfort  and  necessary  support,  but  not 
from  a  devise.  Besides,  the  freedom  of  her  consent 
in  that  case  is  to  be  evinced,  as  fully  as  it  may,  by 
examination  before  a  magistrate  ;  which  circumstance 
also,  as  well  as  that  of  recording,  gives  immediate 
notoriety  to  the  transaction,  that  all  concerned  may 
scrutinize  it  while  it  can  be  done  to  advantage.  Nor 
do  the  general  reasons  urged  for  the  institution  of 
wills  extend  to  a  feme-covert.  That  of  their  use  in 
family  government  does  not,  because  the  government 


THE   GREAT   CONVENTION  115 

is  not  placed  in  her  hands.  Nor  does  that  of  their 
utility  in  stimulating  to  industry  and  economy ;  for 
her  exertion  adds  nothing  to  the  stock  she  is  to 
dispose  of.  The  crumbling  down  of  overgrown 
estates  need  not  be  mentioned  here.  The  posses 
sion  of  this  power  must  be  as  inconvenient  for  feme- 
coverts  as  it  is  unnecessary.  It  must  subject  them 
to  endless  teasing  and  family  discord,  as  well  as  fre 
quently  their  heirs,  and  sometimes  their  children,  to 
the  loss  of  property,  which  the  law  has  been  studious 
to  preserve  for  them.  Add  to  which,  exposed  as  they 
are  to  coercions  imperceptible  to  others,  and  danger 
ous  for  them  to  disclose ;  placed  in  the  power  of  a 
husband,  whose  solicitations  they  cannot  resist,  and 
whose  commands,  in  all  things  lawful,  it  is  their  duty 
to  obey.  Their  wills,  taken  in  a  corner,  and  concealed 
from  the  world  till  they  have  left  it,  can  afford  but 
very  uncertain  evidence  of  the  real  wishes  of  their 
hearts.  Political  considerations,  therefore,  so  far  as 
they  can  be  of  weight,  serve  to  confirm  the  opinion, 
that  a  feme-covert  has  not  power  to  dispose  of  her 
estate  by  will." 

This  is  cogent  reasoning,  and  the  language  terse 
and  trenchant.  Ellsworth,  one  feels,  was  not  only  a 
judge  of  more  than  ordinary  wisdom  but  the  kind  of 
man  who  pondered  on  human  relationships  to  practi 
cal  conclusions  —  a  man  that  could  be  trusted  with  the 
ordering  of  society  and  the  safeguarding  of  interests 
and  rights.  His  power  of  reasoning  from  policy  was, 
no  doubt,  well  tested  when  he  and  his  associates  dealt 
with  certain  unexampled  cases  which  the  war  gave 
rise  to.  In  these,  the  court's  decisions  were  both 
wise  and  liberal.  In  one,  an  action  brought  against 


Il6  OLIVER   ELLSWORTH 

a  deputy  commissary  for  army  purchases,  it  found  for 
the  defendant,  holding  that  he  was  not  liable,  since 
he  was  acting  merely  as  the  agent  of  the  public.  In 
another,  they  decided  that  a  negro  slave  had  become 
a  freeman  when  his  master  permitted  him  to  serve  in 
the  Continental  army.1 

But  in  view  of  the  greater  things  that  Ellsworth 
was  so  soon  to  have  a  share  in,  it  is  difficult  to  com 
bat  our  comparative  indifference  to  the  kind  of  work 
to  which  at  this  time  he  was  giving  himself. 

The  country,  drifting  though  it  seemed  toward  a 
division  into  separate  confederacies  or  a  disintegra 
tion  into  its  unit  states,  was  in  reality  soon  to  display 
in  constructive  politics  an  energy  and  virtue  more  re 
markable  than  any  it  had  shown  in  war ;  and  with  the 
coming  of  that  period  in  his  country's  history  there 
came  also  an  end  of  the  little  things  in  Ellsworth's 
public  career.  From  the  year  1787  until  the  close 
of  his  active  life  there  was  scarcely  anything  he  did 
or  helped  to  do  that  will  not  demand  to  be  remem 
bered  so  long  as  the  republic  shall  endure  and  keep 
its  form. 

Yet  there  does  not  survive  a  single  speech  or  even 
a  letter  to  show  that  during  the  interval  following  his 
retirement  into  the  service  of  Connecticut  he  took  any 
part  whatever  in  the  movement  for  a  better  system 
for  the  whole  country.  Neither  did  Connecticut  have 
much  part  in  it.  Of  all  her  public  men,  only  Ells 
worth's  former  protege,  Noah  Webster,  appeared  con 
spicuously  among  the  advocates  of  a  stronger  Union. 

1  Root's  Reports,  93,  98.  In  this  brief  account  of  Ellsworth  as  a  Superior 
Court  Judge,  I  have  drawn  freely  on  Van  Santvoord,  whose  treatment  of  the 
subject,  though  also  brief,  is  careful,  intelligent,  and  well  informed. 


THE   GREAT  CONVENTION  117 

When  Virginia  and  Maryland  took  the  lead  and 
brought  about  a  convention  at  Annapolis,  Connecti 
cut  sent  no  delegates.  The  General  Assembly  had 
accepted  the  scheme  of  revenue  commended  to  the 
states  by  Congress  in  the  spring  of  1783,  but  not 
without  a  long  delay  and  a  protest  against  one  feature 
of  it ;  for  in  Connecticut  and  other  parts  of  New  Eng 
land  the  commutation  of  the  army's  half-pay  was 
disrelished,  and  the  right  of  Congress  to  grant  the 
half-pay  itself  was  questioned.1  As  New  York  would 
not  accede  to  the  scheme,  it  failed,  and  from  that  time 
Connecticut's  responses  to  the  requisitions  of  the  help 
less  Congress  were,  like  those  of  other  states,  absurdly 
slight.  When  a  call  was  issued  for  a  second  conven 
tion  of  all  the  states,  to  meet  at  Philadelphia  in  May 
of  1787,  she  was  almost  the  last  to  choose  her  dele 
gates.  Yet  she  was  suffering  very  seriously  from  one 
of  those  glaring  defects  of  the  existing  confederation 
which  Madison  and  Washington  and  a  few  other 
broadly  patriotic  men  were  trying  now  to  remedy. 
Of  the  products  of  other  countries  which  her  people 
consumed,  only  a  very  small  proportion  were  brought 
into  her  own  ports.  The  rest  came  chiefly  through 
the  ports  of  her  neighbors,  New  York  and  Rhode 
Island,  to  whom  in  this  way  Connecticut  paid  trib 
ute.  That  was  one  reason  why  New  York  and  Rhode 


1  Oct.  24,  1783,  Ellsworth  wrote  to  Samuel  Hoi  ton  of  Massachusetts  :  "  I 
congratulate  you  also  on  another  piece  of  intelligence  that  your  wise  and 
patriotic  state  has  granted  the  impost  —  fully  —  by  a  unanimous  vote  of  the 
Governor  and  Senate,  and  a  majority  of  16  in  the  House,  —  which  I  hope 
will  have  a  good  influence  on  our  Assembly  now  sitting,  the  lower  house  of 
which  have  been  too  much  disposed  to  risk  everything  rather  than  grant 
a  revenue  which  might  apply  to  commutation."  Ellsworth  Papers  in  the 
New  York  Public  Library. 


Il8  OLIVER   ELLSWORTH 

Island  lagged  behind  in  the  movement  to  strengthen 
the  central  government ;.  why  New  York,  though  she 
commissioned  Hamilton  one  of  her  delegates  to  the 
convention,  sent  along  with  him  Yates  and  Lansing, 
state-rights  extremists,  so  that  he  should  find  him 
self  a  minority  of  one  in  his  own  delegation,  and  why 
Rhode  Island  never  would  elect  any  delegates  at  all. 

Connecticut  elected  hers  on  May  12, — only  two  days 
before  the  date  on  which  the  convention  was  to  have 
assembled.  The  first  choice  of  the  Assembly  was 
Ellsworth,  William  Samuel  Johnson,  and  Erastus 
Wolcott  of  East  Windsor.1  But  Wolcott  declined 
to  serve,  and  Roger  Sherman  was  chosen  in  his 
place.  Ellsworth  must  have  set  off  very  promptly, 
for  on  May  28  he  was  in  his  seat  in  Independence 
Hall  in  Philadelphia.  That  was  the  second  sitting 
of  the  convention,  for  many  other  members  had  been 
late,  and  it  was  not  called  to  order  until  the  25th. 
Sherman  appeared  two  days  after  Ellsworth,  and 
Johnson  on  the  second  day  of  June.  Fortunately,  a 
member  from  a  very  different  quarter  of  the  Union, 
Major  William  Pierce  of  Georgia,  has  left  on  record 
the  impression  which  these  three  Connecticut  states 
men  made  upon  him  at  the  time.2 

To  Dr.  Johnson  this  contemporary  conceded  "a 
strong  and  enlightened  understanding,'*  but  could  not 
find  in  the  learned  gentleman's  speeches  anything  to 
warrant  his  reputation  for  oratory.  His  discourse 
was,  indeed,  eloquent,  clear,  and  highly  instructive, 
but  something  in  his  voice  displeased  the  ear.  His 

1  Stiles's  "  Ancient  Windsor,"  I,  905. 

2  American  Historical  Review,  III,  310-334;  given  also  in  the  notes  to 
Vol.  Ill  of  Hunt's  "Madison's  Writings," passim. 


THE   GREAT   CONVENTION  119 

manners,  however,  were  distinguished,  and  he  won  the 
liking  of  his  fellows  by  the  sweetness  of  his  temper 
and  the  affectionate  way  he  had  of  addressing  them. 
This  was  very  different  from  his  elder  colleague's 
style.  "  Mn  Sherman,"  Pierce  wrote,  "  exhibits  the 
oddest  shaped  character  I  ever  remember  to  have 
met  with.  He  is  awkward,  unmeaning,  and  unac 
countably  strange  in  his  manner.  But  in  his  train 
of  thinking  there  is  something  regular,  deep,  and 
comprehensive,  yet  the  oddity  of  his  address,  the 
vulgarisms  that  accompany  his  public  speaking,  and 
that  strange  New  England  cant  which  runs  through 
his  public  as  well  as  his  private  speaking  make  every 
thing  that  is  connected  with  him  grotesque  and  laugh 
able  :  —  and  yet  he  deserves  infinite  praise,  —  no  man 
has  a  better  heart  or  clearer  head.  .  .  .  He  is  an  able 
politician,  and  extremely  artful  in  accomplishing  any 
particular  object;  —  it  is  remarked  that  he  seldom 
fails.  .  .  ."  The  youngest  of  the  trio  is  described 
more  briefly:  "Mr.  Ellsworth  is  a  Judge  of  the 
Supreme  Court  in  Connecticut ;  —  he  is  a  gentleman 
of  a  clear,  deep,  and  copious  understanding ;  eloquent, 
and  connected  in  public  debate ;  and  always  attentive 
to  his  duty.  He  is  very  happy  in  reply,  and  choice  in 
selecting  such  parts  of  his  adversary's  arguments  as 
he  finds  make  the  strongest  impressions,  —  in  order 
to  take  off  the  force  of  them,  so  as  to  admit  the  power 
of  his  own.  Mr.  Ellsworth  is  about  thirty-seven  years 
of  age,1  a  man  much  respected  for  his  integrity,  and 
venerated  for  his  abilities." 

There  was  scarcely  another  delegate  whom  Pierce 
could  praise  with  so  little  abatement     Yet  his  char- 

1  He  was  forty-two,  in  fact. 


120  OLIVER   ELLSWORTH 

acter  of  Ellsworth  consists  with  other  portraits,  and 
Pierce  can  scarcely  have  had  any  partiality  for  a 
New  England  man  whom  he  probably  saw  now  for 
the  first  time  in  his  life.  Beyond  question,  Connecti 
cut's  delegation  was  one  of  the  strongest  on  the  floor. 
Each  of  the  three  was  a  man  of  force,  likely  to  hold 
his  own  in  any  representative  assembly,  and  they 
labored  together  in  exemplary  friendliness,  with  an 
uncommon  unanimity  of  purpose  and  opinion.  No 
other  Eastern  state  had  chosen  so  happily. 

Many  writers  have  sought  about  for  words  to  praise 
the  great  convention,  but  none,  I  think,  has  hit  upon 
a  better  phrase  than  Major  Pierce's;  he  calls  it  "the 
wisest  council  in  the  world."  Sherman,  who  had  sat 
in  Congress  with  many  of  the  older  and  more  famous 
of  the  delegates,  —  himself  the  next  in  age  to  Franklin, 
—  did  not  find  himself  abashed  in  such  a  presence,  but 
began  at  once  to  take  a  full  share  in  the  discussions. 
Ellsworth,  however,  less  known,  and  younger  than 
Sherman  by  nearly  a  quarter  of  a  century,  sat  for  a 
fortnight  in  silence,  forming,  no  doubt,  his  own  delib 
erate  judgment  of  the  situation  and  the  schemes  pro 
posed,  and  his  own  shrewd  estimate  of  all  these  strong 
and  independent  men  about  him.  Apart  from  the  roll- 
calls,  his  name  does  not  appear  in  any  record  of  the 
proceedings  under  an  earlier  date  than  June  n,  when 
he  merely  seconded  a  motion  of  Sherman's.1 

Meanwhile,  the  convention,  plunging  at  once  into 
its  work,  had  covered  much  important  ground.  With- 

1  "  Documentary  History  of  the  Constitution,"  published  by  the  Depart 
ment  of  State,  Washington,  III,  108.  This  collection  of  documents  is  my 
authority  for  all  specific  statements  about  the  convention  for  which  no  other 
authorities  are  given. 


THE   GREAT   CONVENTION  121 

out  some  knowledge  of  its  general  plan  of  procedure, 
it  will  not  be  easy  to  see  clearly  what  was  the  share  of 
Ellsworth  or  of  any  other  single  member  in  the  final 
outcome  of  its  labors  and  debates. 

Edmund  Randolph,  governor  of  Virginia,  had  led 
the  way  into  the  great  field  of  statesmanship  open  to 
the  Assembly  by  proposing,  in  an  elaborate  speech,  a 
series  of  resolutions  agreed  upon  by  several  of  the 
Virginia  delegates,  and  based  on  a  plan  of  Madison's. 
They  set  forth  the  general  scheme  of  a  strong  central 
government,  to  be  made  up  of  a  distinctly  national 
legislature  of  two  houses,  the  first  to  be  elected  by  the 
people,  the  second  by  the  first,  and  of  a  national  execu 
tive  and  judiciary,  to  be  chosen  by  the  legislature. 
The  troubles  which  the  old  confederation  had  en 
countered  from  its  lack  of  authority  over  individuals 
were  squarely  met  by  granting  to  the  central  legisla 
ture  the  right  to  make  laws  in  all  cases  to  which  the 
several  states  were  incompetent,  or  in  which,  through 
their  uncontrolled  activity,  "  the  harmony  of  the  United 
States  "  might  be  interrupted.  There  was  even  con 
ferred  a  power  to  negative  state  laws  which  should 
seem  to  contravene  the  new  articles  of  union,  and  to 
coerce  any  state  that  would  not  meet  its  obligations. 
Here  was  much  more  than  a  mere  improvement  of  the 
articles.  By  giving  to  the  government  an  immediate 
operation  upon  individual  citizens,  its  whole  character 
would  be  radically  changed.  It  would  be  self-support 
ing  and  supreme.  In  making  laws,  in  enforcing  them 
by  its  executive,  in  administering  justice  through  its 
courts,  it  would  act  always  of  its  own  authority  and 
force,  neither  waiting  for  the  states  to  approve  its 
measures  nor  depending  on  them  to  pay  the  bills. 


122  OLIVER   ELLSWORTH 

The  Virginia  resolutions,  introduced  the  day  after 
Ellsworth's  arrival,  were  at  once  referred  to  a  com 
mittee  of  the  whole  house,  where  they  were  under 
consideration  until  June  13,  when  the  committee  rose 
and  reported  them  back  to  the  convention  with 
changes  and  additions.  Throughout  this  early  period 
of  the  debates,  national  men  and  the  national  motive 
had  the  ascendency.  Hamilton,  it  is  true,  would  have 
gone  much  farther  than  even  Randolph  proposed. 
He  wished  to  overthrow  completely  the  power  and 
sovereignty  of  the  states,  and  he  wished  also  to 
abandon  democracy  and  make  the  government  dis 
tinctly  aristocratic.  But  Read  of  Delaware  was 
apparently  the  only  other  delegate  who  fully  shared 
these  views.  Gouverneur  Morris,  though  contemptuous 
of  democracy  and  bent  on  anchoring  all  to  property, 
fell  somewhat  behind  the  thoroughgoing  Hamilton. 
Madison  and  his  Virginian  colleagues,  whose  prestige 
was,  no  doubt,  controlling  at  the  outset,  were  not 
committed  either  against  democracy  or  against  a 
reasonable  authority  in  the  states.  As  the  debate 
proceeded,  the  representatives  of  New  Jersey,  Dela 
ware,  and  Maryland  gradually  gained  the  confidence 
to  speak  out  strongly  against  those  parts  of  the  Vir 
ginia  plan  which  threatened  the  sovereignty  and  the 
equality  of  the  several  states,  and  they  were  abetted  by 
Hamilton's  New  York  colleagues.  By  the  time  the 
committee  rose,  there  was  a  clear  confrontment  of 
national  men  and  state-rights  men,  with  the  delegates 
from  the  larger  states,  as  a  rule,  on  one  side,  and  the 
delegates  from  the  smaller  states  on  the  other.  The 
controversy  ranged  over  various  specific  questions, 
but  it  centred  about  the  question  of  how  the  central 
legislature  should  be  chosen  and  composed. 


THE   GREAT   CONVENTION  123 

The  three  delegates  from  Connecticut  had  come  to 
Philadelphia  with  no  other  design  than  the  general 
purpose  to  amend  the  old  articles  in  those  respects  in 
which  they  had  proved  defective.  After  Sherman's 
death,  there  was  found  among  his  papers  a  series  of 
nine  proposals,  which  exhibit  his  view  of  what  was 
needed  in  order  to  a  better  general  government.1  He 
desired  merely  to  give  Congress,  constituted  as  it  was, 
certain  additional  powers,  among  them  the  control 
of  foreign  and  interstate  commerce,  and  the  power  to 
levy  and  collect  duties  on  imposts.  He  would  have 
made  its  laws  binding  on  the  states  and  the  people 
in  everything  pertaining  to  the  common  interest,  he 
favored  setting  up  a  supreme  central  tribunal,  and  he 
would  also  have  denied  to  the  states  certain  powers 
which  they  had  misused,  like  the  power  to  emit  bills 
of  credit.  But  the  scheme  did  not  contemplate  any 
radical  change  in  the  form  or  the  basis  of  the  govern 
ment.  Ellsworth,  whether  or  not  he  helped  to  frame 
these  proposals,  showed,  when  he  began  to  play  a 
part  in  the  convention,  that  they  expressed  substan 
tially  his  own  view  also.  He  had,  however,  before 
Johnson  came,  differed  with  Sherman  frequently,  for 
on  a  number  of  questions  the  vote  of  Connecticut  was 
"  divided  "  and  lost.  The  inference  to  be  drawn  from 
these  early  roll-calls  is  that  of  the  two  Sherman  was 
somewhat  the  more  rigid  state-rights  man.  But  they 
stood  together,  and  Johnson  with  them,  when  the 

1  Evarts's  "  Sherman,"  in  Sanderson's  "  Biographies  of  the  Signers," 
42-44;  L.  H.  Boutell's  "Sherman,"  132-134.  Bancroft  ("History  of 
the  United  States,"  VI,  231,  note)  thinks  that  this  paper  was  probably 
written  after  Sherman's  arrival  in  Philadelphia,  and  favors  the  notion  that 
Ellsworth  had  a  hand  in  framing  it.  Boutell,  however,  assigns  it  to  "  the 
latter  part  of  Sherman's  service  in  the  Continental  Congress." 


124 


OLIVER   ELLSWORTH 


issue  between  the  small  states  and  the  large  was 
clearly  drawn.  That  was  the  issue  before  the  conven 
tion  when  they  made  their  motion  of  June  1 1. 

The  day  before,  William  Paterson  of  New  Jersey 
had  with  fire  and  bitterness  assailed  the  whole  plan 
before  the  house  for  its  clear  purpose  and  tendency  to 
destroy  the  equality  of  the  states  in  their  common 
government  by  basing  directly  on  population  the 
apportionment  of  representatives  in  the  legislature. 
Wilson,  who  seems  from  the  first  to  have  been  the 
special  champion  of  proportional  representation  in 
both  houses,  had  answered  him  without  making  any 
concessions.  Paterson  and  his  following  denied  the 
convention's  right,  under  the  guise  of  amending 
the  old  articles,  to  accomplish  such  a  revolutionary 
change,  accused  the  great  states  of  planning  to  reduce 
their  lesser  associates  to  utter  impotence  and  insignifi 
cance,  and  began  now  to  declare  defiantly  that  the  small 
states  never  would  federate  on  any  such  terms.  On 
the  other  hand,  Wilson  and  others,  pointing  out  that 
an  equality  of  states  in  Congress  meant  in  practice  the 
government  of  an  overwhelming  majority  of  the  peo 
ple  by  a  ridiculously  small  minority,  declared  that  the 
great  states  would  not  submit  to  such  injustice.  The 
issue  between  the  national  and  the  federal  or  confeder 
ate  principle  was  made  quite  as  plain  as  that  between 
the  interests  of  the  greater  states  —  particularly 
Massachusetts,  Pennsylvania,  and  Virginia  —  and 
the  interests  of  the  little  states  like  New  Jersey  and 
Delaware.  It  seems  now,  in  fact,  much  plainer; 
for  there  has  never  come  about  any  such  division 
between  the  big  and  the  little  states  as  was  so  often 
foreboded.  Nevertheless,  that  apprehension  was  the 


THE   GREAT   CONVENTION  125 

source  of  the  angriest  of  all  the  conflicts  in  the 
convention. 

On  the  nth,  the  whole  subject  of  the  ratio  of  rep 
resentation  in  both  houses  was  still  under  discussion. 
Various  proposals  had  been  made,  and  among  them 
one  by  Sherman  that  contained  the  essence  of  a 
plan  of  compromise  which  the  convention,  after 
many  times  rejecting  it,  came  at  last  to  accept  as 
the  only  way  out  of  the  controversy.  The  motion 
was  that  in  the  second  branch  of  the  legislature  each 
state  should  have  one  vote.  Shortly  afterward,  a 
motion  for  an  "  equitable  ratio "  in  the  first  branch 
being  carried  (Connecticut  voting  ay),  Rutledge's 
plan  of  a  ratio  based  on  contributions  to  the  revenue 
was  set  aside  for  Wilson's  simple  rule  of  population. 
At  this  point,  Sherman  called  for  a  question  on  the 
second  branch,  and  Ellsworth,  rising  for  the  first  time, 
seconded  him. 

They  were  voted  down  by  Massachusetts,  Pennsyl 
vania,  and  all  the  states  south  of  Maryland.  Geor 
gia  and  the  Carolinas,  expecting  a  rapid  growth  in 
wealth  and  numbers,  felt  that  their  interest  lay  with 
the  great  states.  Of  the  little  states,  both  New  Hamp 
shire  and  Rhode  Island  were  still  unrepresented. 
Wilson  and  Hamilton,  promptly  seizing  the  opportu 
nity,  pushed  the  national  principle  as  far  as  it  ever  was 
advanced  at  any  time  in  the  convention.  They  moved 
the  same  ratio  for  the  second  branch  as  for  the  first, 
and  the  motion  was  carried  by  the  same  majority  of 
six  states  to  five.  For  weeks,  this  clause  was  stub 
bornly  retained  in  the  resolutions,  which  were  now,  to 
use  a  favorite  phrase  of  Madison,  "  on  the  anvil,"  and 
gradually  being  hammered  into  the  shape  of  a  con 
stitution. 


126  OLIVER   ELLSWORTH 

The  next  day,  Ellsworth  and  Sherman  joined  in  a 
motion  for  annual  elections  to  the  first  branch  of  Con 
gress.  Whenever  this  subject  was  up,  Connecticut 
stood  for  brief  terms  of  service.  Her  experience  of 
annual  elections  had  been  peculiarly  fortunate,  and 
doubtless  accounts  in  part  for  the  strong  faith  in 
democracy  which  her  delegates  now  exhibited  at  every 
opportunity.  They  stood  alone  against  the  whole 
clause  on  the  term  and  pay  of  representatives,  object 
ing  both  to  the  length  of  the  term  and  to  payment 
from  the  national  treasury  instead  of  by  the  states. 

In  the  bigger  contest  between  the  two  groups  of 
states  over  the  question  of  the  national  or  federal 
character  of  the  system  to  be  established,  the  rising 
of  the  committee  was  the  signal  for  an  open  show  of 
force  by  the  partisans  of  the  little  states.  The  con 
vention  adjourned  for  two  days,  to  give  them  time  to 
formulate  their  plan,  and  on  the  i5th  Paterson  re 
ported  it.  There  is  no  authentic  list  of  those  who 
helped  him  to  frame  it,  but  Madison  states  that  it  "  had 
been  concerted  among  the  deputations,  or  members 
thereof,  from  Con1.,  N.Y.,  N.J.,  Del.,  and  perhaps  Mr. 
Martin  of  Maryland,"1  explaining,  however,  that  they 
consorted  from  different  principles.  Connecticut  and 
New  York  were  opposed  to  a  departure  from  the  princi 
ples  of  the  old  confederation ;  they  were  willing  to  give 
a  few  new  powers  to  Congress,  but  not  to  set  up 
a  national  government.  Delaware  and  New  Jersey 
were  chiefly  concerned  for  an  equality  of  representa 
tion.  Madison  adds  that  the  attitude  of  the  whole 
conservative  party  began  now  to  produce  serious  anxi- 

1  "  Documentary  History  of  the  Constitution,"  III,  124.  See  also  Luther 
Martin's  account  in  Elliot's  "  Debates,"  I,  344-389. 


THE   GREAT   CONVENTION  127 

ety  for  the  outcome  of  the  convention.  Howsoever 
the  new  plan  was  put  together,  it  followed  in  its  main 
lines  the  nine  proposals  which  were  afterward  found 
among  Sherman's  papers,  and  which  one  historian  has 
styled  "the  plan  of  Connecticut"1  In  place  of  the 
first  resolution  of  the  Virginia  plan  as  it  now  stood, 
calling  for  a  distinctly  national  government  of  three 
departments,  Paterson  proposed  merely  to  amend  and 
extend  the  old  articles  so  as  to  meet  the  actual  exi 
gencies  of  the  government  and  preserve  the  Union. 
His  specific  proposals  were  all  in  keeping  with  this 
general  definition  of  the  object  to  be  sought.  Not 
merely  was  Wilson's  plan  for  electing  the  second 
branch  of  the  legislature  rejected ;  the  second  branch 
itself  was  rejected,  and  the  old  Congress  left  as  it  was, 
save  that  its  powers  were  increased. 

The  consideration  of  the  new  plan,  apart  from  gen 
eral  comparisons  with  its  rival,  never  went  beyond  its 
opening  resolution.  Referred,  along  with  the  amended 
Virginia  plan,  to  a  committee  of  the  whole  house,  it  was 
scathingly  criticised  by  Wilson  and  hotly  defended  by 
Paterson.  The  question  being  between  the  first  reso 
lutions  of  the  two  antagonistic  programmes,  Ellsworth 
offered,  as  a  better  means  to  take  the  sense  of  the 
committee,  a  resolution  "  that  the  legislative  power  of 
the  United  States  should  remain  in  Congress."  Madi 
son  agreed  that  Ellsworth's  motion  was  the  better  form 
for  a  division,  but  it  was  not  seconded.  This  was 
on  Saturday,  the  i6th.  On  Monday,  Hamilton  occu 
pied  the  entire  sitting  of  the  committee  with  a  long 
speech,  condemning  both  plans  as  too  weak  and  too 
democratic,  and  presented  in  rough  outline  a  plan  of 

1  Bancroft,  VI,  Table  of  Contents,  and  pp.  231-232. 


128  OLIVER   ELLSWORTH 

his  own.  On  Tuesday,  the  iQth,  after  a  strong  and 
patient  argument  from  Madison,  the  Paterson  scheme 
was  definitely  rejected,  and  the  plan  based  on  the  Vir 
ginia  resolutions  again  reported  to  the  convention. 
Only  New  York,  New  Jersey,  and  Delaware  voted  no. 
Apparently,  the  Connecticut  men  were  either  some 
what  moved  by  the  strength  of  the  national  arguments 
and  the  national  spirit,  or  else  they  had  acted  with  the 
extreme  state-rights  men  only  to  prevent  the  national 
men  from  going  too  far,  not  in  the  wish  to  keep  the 
government  entirely  federal.  The  very  next  day,  Sher 
man  let  fall  something  which  may  perhaps  be  taken 
to  mean  that  there  was  already  in  the  air  the  project 
of  a  compromise  between  the  two  warring  theories. 
Speaking  on  the  general  form  of  the  legislature,  he 
declared  that  he  was  for  one  chamber  rather  than  two ; 
but  he  added  that  if  the  difficult  question  of  repre 
sentation  could  not  be  otherwise  got  over  he  would 
consent  to  two,  provided  each  state  were  allowed  an 
equal  voice  in  the  second. 

If,  however,  the  idea  of  compromise  was  in  the  air, 
this  was  for  a  while  the  only  sign  of  it  in  the  debates. 
The  convention  was  now  a  second  time  going  over 
the  whole  ground,  examining  in  detail  the  report  of 
the  committee,  minutely  discussing  it  from  many  points 
of  view,  striking  out,  expanding,  and  amending.  The 
majority  was  still  with  the  large  states  and  the  national 
principle.  At  the  outset  of  the  second  revision,  how 
ever,  Ellsworth  secured  a  conspicuous  amendment. 
For  the  phrase  "  a  national  government "  in  the  open 
ing  resolution  he  moved  to  substitute  "  the  govern 
ment  of  the  United  States."  The  motion  passed 
without  dissent,  and  the  title  was  never  changed 


THE   GREAT   CONVENTION  1 29 

again.  Perhaps,  therefore,  he  ought  to  be  credited 
with  the  naming  of  the  government.  He  also  began 
now  to  speak  much  more  frequently,  though  seldom 
at  great  length ;  and  there  are  signs  that  when  he 
did  speak  the  strongest  men  in  the  convention  paid 
attention. 

But  it  is  misleading  to  try  to  estimate  his  or  any 
other  delegate's  influence  solely  on  the  basis  of  what 
he  did  and  said  in  the  convention  and  in  the  com 
mittee  of  the  whole.  Robert  Morris,  for  instance, 
never  made  a  single  speech ;  but  it  is  hard  to  believe 
that  he  had  nothing  whatever  to  do  with  the  outcome. 
Statesmanlike  as  this  great  body  was,  extraordinary  as 
it  was  for  nobleness  and  singleness  of  purpose,  many 
of  the  members  were  veterans  in  politics;  and  they 
certainly  did  not  on  this  occasion  forbear  to  seek  their 
ends  by  other  methods  than  debate  in  the  full  assem 
bly.  We  know  from  Madison  and  others  that  proceed 
ings  on  the  floor  were  on  several  important  occasions 
governed  by  agreements  elsewhere  and  otherwise  ar 
rived  at.  And  of  Ellsworth  in  particular  we  know 
that  from  his  boyhood  days  at  Princeton  he  had 
shown  an  uncommon  skill  in  this  kind  of  work. 
He  was,  in  fact,  an  excellent  politician,  and  he  had 
even  more  than  his  share  of  Yankee  shrewdness  and 
of  Yankee  fondness  for  a  bargain.  The  chances  are 
that  if,  as  early  as  Sherman's  speech  of  the  iQth  of 
June,  there  was  an  understanding  of  any  sort  about 
the  final  composition  of  the  houses,  his  younger  col 
league  knew  of  it  and  was  a  party  to  it.  And  if,  in 
abetting  Paterson  and  Martin  and  other  state-rights 
extremists,  the  men  of  a  somewhat  less  uncompro 
misingly  particularistic  bent  were  merely  trying  to 


130  OLIVER   ELLSWORTH 

frighten  the  national  men  into  certain  concessions, 
Ellsworth  doubtless  fully  understood  that  also. 

Whether  or  not  that  was  their  object,  they  un 
doubtedly  did  inspire  the  gravest  apprehensions  in 
the  leaders  of  the  majority.  When  Paterson  proposed 
his  plan,  Madison  recorded  that  the  opposition  to  a 
national  government  "  began  now  to  produce  serious 
anxiety  for  the  result  of  the  convention."  Mixed 
with  the  fear  that  the  extreme  state-rights  men  might 
withdraw  altogether,  there  was  the  apprehension  that 
New  Hampshire  might  soon  come  in  and  bring  about 
a  deadlock,  and  there  was  also,  perhaps,  some  uneasi 
ness  about  the  course  of  Georgia,  which  was  still  the 
least  populous  of  all  the  states,  and  must  look  well 
into  the  future  for  any  reason  for  voting  with  the 
great-states  party.  Moreover,  Delaware  had  expressly 
instructed  her  delegates  against  any  change  of  that 
provision  in  the  articles  which  gave  to  each  state  one 
vote  in  Congress.  The  opponents  of  proportional 
representation  were  not  without  resources  for  resist 
ance  or  for  compromise. 

Meanwhile,  as  the  revision  proceeded  in  convention, 
Ellsworth  sustained  with  speeches  some  of  the  opin 
ions  which  he  had  indicated  already  by  his  votes 
in  committee.  He  spoke  for  annual  elections  to  the 
first  branch  of  the  legislature,1  urging  that  the  people 
were  fond  of  frequent  elections  and  might  in  one 
branch  safely  be  indulged;  and  when  the  clause 
providing  that  representatives  should  be  paid  from  the 
national  treasury  again  came  up,  he  moved  to  strike 
it  out  in  order  to  substitute  payment  by  the  states. 
He  pointed  out2  that  under  the  proportional  plan 

1  June  20.  2  June  22,  Yates,  in  Elliot's  "  Debates,"  I,  434. 


THE   GREAT   CONVENTION  131 

this  would  mean  no  hardship  to  the  smaller  states  ; 
that  the  standard  of  living  differed  in  different  states ; 
and  that  therefore  uniformity  would  work  unequally 
and  might  arouse  opposition.  Hamilton,  who  was  one 
of  his  opponents  on  this  point,  prophesied  that  the 
state  governments  would  be  the  rivals  of  the  general 
government,  and  ought  not,  therefore,  to  be  its  pay 
masters.  Ellsworth  promptly  retorted:  "  If  we  are 
so  exceedingly  jealous  of  state  legislatures,  will  they 
not  have  reason  to  be  equally  jealous  of  us  ?  If  I 
return  to  my  state,  and  tell  them,  '  We  made  such  and 
such  regulations  for  a  general  government  because 
we  dared  not  trust  you  with  any  extensive  powers,' 
—  will  they  be  satisfied  ?  Nay,  will  they  adopt  your 
government  ?  And  let  it  ever  be  remembered  that, 
without  their  approbation,  your  government  is  noth 
ing  more  than  a  rope  of  sand."1  But  on  both  these 
points  he  was  beaten. 

By  the  25th  of  June,  the  revision  had  come 
again  to  the  constitution  of  the  second  branch  of  the 
legislature.  As  the  resolution  stood,  the  legislatures 
of  the  states  were  to  choose  this  branch.  Wilson 
moving  to  strike  the  clause  out  in  order  to  a  choice 
by  electors,  Ellsworth  replied  in  his  first  speech  of 
any  considerable  length.2  "  Whoever  chooses  the 
member,"  he  contended,. "  he  will  be  a  citizen  of  the 

1  "Documentary  History  of  the  Constitution,"  III,  190. 

2  Ibid.,  209-210;   Yates,  in  Elliot's  "Debates,"  I,  446-447;  King,  in 
"Life    and    Correspondence   of  Rufus   King,"    by   C.    R.   King,    I,  607. 
With    Ellsworth's    speeches    in   the    convention    I    have    followed    Ban 
croft's   method,   collating  all   the   reports   to   be    found.     It   is,    I    think, 
a  legitimate  method  to  obtain  a  notion  of  what  he  actually   said,  and 
particularly   to    make    his    reasoning    clear.      None    of   the    reports    is 
perfect. 


132  OLIVER   ELLSWORTH 

state  he  is  to  represent  and  will  feel  the  same  spirit 
and  act  the  same  part  whether  he  be  appointed  by 
the  people  or  the  legislature.  Every  state  has  its 
particular  views  and  prejudices,  which  will  find  their 
way  into  the  general  councils,  through  whatever 
channel  they  may  flow."  The  forecast  was  right,  for 
even  to  the  present  day  the  entire  delegation  of  a 
particular  state,  senators  and  representatives,  will 
usually  stand  together  when  its  interests  are  in  issue 
or  its  desires  need  to  be  expressed.  He  was  also  of 
opinion  that  if  wisdom  were  the  object  in  the  second 
branch  the  legislatures  and  not  the  people  ought  to 
elect  it.  Turning  then  to  the  mooted  question  of 
what  part  the  states  should  have  in  the  new  system, 
he  said: 

"  We  must  build  our  general  government  on  the 
strength  and  vigor  of  the  state  governments.  With 
out  their  cooperation  it  would  be  impossible  to  sup 
port  a  Republican  government  over  so  great  an 
extent  of  country.  An  army  would  scarcely  render 
it  practicable.  The  largest  states  are  the  worst  gov 
erned.  Virginia  is  obliged  to  acknowledge  her 
incapacity  to  extend  her  government  to  Kentucky. 
Massachusetts  cannot  keep  the  peace  one  hundred 
miles  from  her  capital,  and  is  now  forming  a  standing 
army  for  its  support.  How  long  Pennsylvania  may 
be  free  from  a  like  situation  cannot  be  foreseen.  If 
the  principles  and  materials  of  our  government  are 
not  adequate  to  the  extent  of  these  single  states, 
how  can  it  be  imagined  that  they  can  support  a  sin 
gle  government  throughout  the  United  States  ?  We 
know  that  the  people  of  the  states  are  strongly 
attached  to  their  own  constitutions.  If  you  hold  up 


THE   GREAT   CONVENTION  133 

a  system  of  general  government  destructive  of  their 
constitutional  rights,  they  will  oppose  it.  Some  are 
of  opinion  that,  if  we  cannot  form  a  general  govern 
ment  so  as  to  destroy  the  state  governments,  we  ought 
at  least  to  balance  the  one  against  the  other.  On  the 
contrary,  the  only  chance  we  have  to  support  a  gen 
eral  government  is,  to  graft  it  on  the  state  govern 
ments.  I  want  to  proceed  on  this  ground,  as  the 
safest,  and  I  believe  no  other  plan  is  practicable." 

It  really  seems  as  if  at  this  time  Ellsworth  had  felt 
his  way  nearer  than  any  other  member  not  merely  to 
a  practical  adjustment  but  to  that  conception  of  a 
partly  national,  partly  federal  system  which  this  as 
sembly  contributed  to  the  art  of  government.  It 
was  a  new  conception,  and  to  ordinary  thinking  far 
from  easy.  Neither  Ellsworth  nor  the  convention 
can  be  said  to  have  created  or  invented  it,  but  only 
to  have  discovered  it.  The  delegates  were  gradually 
led  to  it  by  the  demands  of  the  actual  situation  which 
they  had  in  hand. 

Madison  and  others  were  for  going  on  at  once  to 
the  question  of  the  ratio  in  the  Senate,  but  for  a  little 
while  the  convention  continued  to  consider  the 
method  of  election,  the  stipend,  and  the  term  of  ser 
vice.  Wilson  was  defeated,  and  the  choice  of  the 
second  branch  by  legislatures  was  not  again  seriously 
attacked.  But  when  Sherman  spoke  for  a  short  term 
of  service,  Hamilton  took  the  other  side,  and  in  a  brief 
but  very  remarkable  speech  his  intellect  played  upon 
the  happy  working  of  democracy  in  Connecticut 
in  a  way  that  fully  explains  why  this  young  states 
man  of  thirty  was  felt  by  his  associates  in  the  conven 
tion  as  scarcely  any  other  man  of  his  time  was  when 


134  OLIVER   ELLSWORTH 

strong  men  came  together.  He  showed,  in  fact,  a 
clearer  comprehension  of  Connecticut's  still  simple 
civilization  than  Sherman  had,  who  had  known  it  all 
his  life.  Hamilton  had  divined  it,  as,  according  to 
Talleyrand's  famous  encomium,  he  divined  Europe. 
Ellsworth,  for  his  part,  moved  again  for  payment  by 
the  states,  and  encountered  for  his  particular  opponent 
Madison,  who  pointed  out  that  if  the  motion  passed 
the  states  would  really  have  a  power  of  recall,  and 
fix  the  term  of  service  to  suit  themselves.  It  was 
voted  down,  and  then,  adopting  without  debate  the 
resolution  empowering  each  house  to  originate  meas 
ures  of  all  kinds,  the  convention  took  up,  out  of  their 
order,  the  two  resolutions  that  dealt  with  the  ratio  of 
representation.  When  Luther  Martin  had  finished 
a  speech,  delivered  "  with  great  diffuseness  and  con 
siderable  vehemence,"  and  so  long  that  it  ran  over 
well  into  the  second  day,  Lansing  of  New  York 
brought  forward  the  extreme  state-rights  proposal  to 
leave  the  suffrage  in  the  new  legislature  precisely  as 
it  was  in  the  old  Congress,  and  the  controversy  was 
soon  as  warm  as  it  had  ever  been.  Franklin,  whose 
greatest  services  in  the  convention  were  rendered  less 
by  statesmanship  than  by  knowledge  of  human  nature, 
and  particularly  by  the  tact  and  wisdom  he  displayed 
in  dealing  with  the  men  about  him,  rose  and  moved, 
with  a  short  and  serious  speech,  that  thenceforth, 
every  day,  the  help  of  Heaven  be  implored.  The 
sitting  ended  without  a  formal  adjournment. 

It  was  clear  to  all  that  the  convention  had  come 
to  the  turning  point  in  its  history;  its  success  or 
failure  would  depend  on  its  course  with  the  question 
of  the  suffrage  in  the  two  houses.  It  is  true  that 


THE    GREAT   CONVENTION  135 

the  antagonism  of  interest  between  the  large  states 
and  the  small  was  fanciful ;  the  apprehension  of  it  is 
a  striking  instance  of  the  fallibility  of  the  strongest 
minds.  But  the  issue  between  the  national  and  fed 
eral  principles  was  both  real  and  vital.  If  the  new 
system  was  to  be,  in  any  respect  whatever,  truly  fed 
eral,  then  the  states,  as  states,  must  continue  to  be 
somehow  represented  in  the  government.  Apparently, 
while  many  saw  that  this  was  so,  the  delegates  from 
Connecticut  saw  somewhat  sooner  and  more  clearly 
than  the  others  that  the  two  principles  could  be 
harmonized  and  correlated,  and  they  also  saw  a  way 
to  do  it.  Perhaps  they  were  impelled  by  an  imme 
diate  desire  to  win  from  the  convention  as  much  of 
what  they  had  originally  demanded  as  it  could  pos 
sibly  be  brought  to  concede ;  but  for  being,  in  that 
respect,  no  more  than  human,  they  ought  not  to  be 
greatly  blamed.  With  the  best  and  wisest  of  their 
fellows,  they  were  also,  no  doubt,  quickened  in  their 
contriving  by  an  earnest  wish  to  bring  about  such  an 
agreement  as  would  keep  the  convention  from  break 
ing  up  in  anger  and  despair. 

The  next  day,  the  29th,  Johnson  opened  the  de 
bate,  speaking  for  a  compromise,  the  people  to  be 
represented  in  the  first  branch,  the  states  in  the 
second.  It  should  have  been  plain  to  the  state- 
rights  extremists  that  their  fight  for  the  old  ar 
rangement  —  a  single  house,  with  an  equal  vote 
for  every  state  —  was  lost.  Hamilton  and  Madison 
assailed  them  with  powerful  reasoning  and  moving 
appeals.  Gorham  spoke  so  despairingly  of  the  pros 
pect  if  they  should  remain  obdurate,  that  Ellsworth 
remarked,  "He  did  not  despair;  he  still  trusted 


136  OLIVER   ELLSWORTH 

that  some  good  plan  of  government  would  be  de 
vised  and  adopted."  Lansing's  motion  was  then 
voted  down,  and  proportional  representation  in  the 
first  branch  was  adopted.  Johnson  and  Ellsworth 
immediately  moved  to  take  up  the  resolution  on  the 
suffrage  in  the  second  branch.  That  motion  carrying, 
Ellsworth  moved  to  substitute  the  rule  of  the  old  Con 
gress  for  the  second  branch,  and  spoke  at  greater  length 
than  ever  before. l 

"  He  was  not  sorry,  on  the  whole,  that  the  vote  just 
passed  had  determined  against  this  rule  in  the  first 
branch.2  He  hoped  it  would  become  a  ground  of  com 
promise.  He  confessed  that  the  effect  of  his  motion 
was  to  make  the  general  government  partly  federal 
and  partly  national.  This  would  secure  tranquillity, 
and  still  make  it  efficient ;  and  it  would  meet  the  objec 
tions  of  the  larger  states.  The  proportional  represen 
tation  in  the  first  branch  was  conformable  to  the  national 
principle  and  would  secure  the  large  states  against  the 
small.  In  taxes  they  would  have  a  proportional  weight. 
An  equality  of  voices  was  conformable  to  the  federal 
principle,  and  was  necessary  to  secure  the  small  states 
against  the  large.  He  trusted  that  on  this  middle 
ground  a  compromise  would  take  place.  He  did  not 
see  that  it  could  on  any  other.  And  if  no  compromise 
should  take  place,  our  meeting  would  be  in  vain,  and 
worse  than  in  vain.  If  the  large  states  refused  this 
plan,  we  should  be  forever  separated.  If  the  Southern 
states  agreed  to  a  popular  instead  of  a  state  representa 
tion,  we  should  produce  a  separation.  To  the  East 
ward,  he  was  sure  that  Massachusetts  was  the  only 

1  Madison,  Yatcs,  and  King,  as  above. 

3  Connecticut  had  voted  for  Lansing's  motion. 


THE   GREAT   CONVENTION  137 

State  that  would  listen  to  a  proposition  for  excluding 
the  states,  as  equal  political  societies,  from  an  equal 
voice  in  both  branches.1  The  others  would  risk  every 
consequence  rather  than  part  with  so  dear  a  right.  An 
attempt  to  deprive  them  of  it  was  at  once  cutting  the 
body  of  America  in  two,  and,  as  he  supposed  would 
be  the  case,  somewhere  about  this  part  of  it.  The 
Union  must  be  cut  in  two  at  the  Delaware.  The  large 
States,  he  conceived,  would,  notwithstanding  the  equal 
ity  of  votes,  have  an  influence  that  would  maintain 
their  superiority.  Even  in  the  executive,  the  larger 
states  had  ever  had  influence.  Holland,  as  had  been 
admitted  (by  Mr.  Madison),  had,  notwithstanding  a 
like  equality  in  the  Dutch  Confederacy,  a  prevailing 
influence  in  the  public  measures.  Small  communities, 
when  associating  with  greater,  could  only  be  supported 
by  an  equality  of  votes.  The  power  of  self-defence  was 
essential  to  the  small  States.  Nature  had  given  it  to 
the  smallest  insect  of  creation.  He  could  never  admit 
that  there  was  no  danger  of  combinations  among  the 
large  states.  They  will,  like  individuals,  find  out  and 
avail  themselves  of  the  advantage  to  be  gained  by  it. 
It  was  true  the  danger  would  be  greater  if  they 
were  contiguous  and  had  a  more  immediate  common 
interest.  Yet  they  might  be  partially  attached  to  each 
other  for  mutual  support  and  advancement.  They 
would  be  able  to  combine,  and  therefore  there  was  no 
danger.  A  defensive  combination  of  the  small  states 
was  rendered  more  difficult  by  their  greater  number. 
Three  or  four  could  more  easily  enter  into  combina 
tion  than  nine  or  ten. 

1  No  doubt  he  meant  (and  probably  said)  "  excluding  the  states,  etc., 
in  both  branches,  from  an  equal  voice." 


138  OLIVER   ELLSWORTH 

"  He  would  mention  another  consideration  of  great 
weight.  The  existing  confederation  was  founded  on 
the  equality  of  the  states  in  the  article  of  suffrage ;  was 
it  meant  to  pay  no  regard  to  this  antecedent  plighted 
faith  ?  It  was  not  yet  obvious  to  him  that  the  states 
would  depart  from  this  ground.  When  in  the  hour  of 
our  common  danger  we  united  as  equals,  should  it  now 
be  urged  by  some  that  we  must  depart  from  this  prin 
ciple  when  the  danger  is  over  ?  Would  the  world  say 
that  this  is  just?  We  then  associated  as  free  and  in 
dependent  states,  and  were  well  satisfied.  Let  a  strong 
executive,  judiciary,  and  legislative  power  be  created ; 
but  let  not  too  much  be  attempted,  by  which  all  may 
be  lost.  Nor  would  he  be  surprised  (though  we  made 
the  general  government  the  most  perfect,  in  our  opin 
ion,)  that  it  should  hereafter  require  amendment.  But 
at  present  this  was  as  far  as  he  could  possibly  go.  If 
this  convention  only  chalked  out  lines  of  good  govern 
ment,  we  should  do  well.  He  was  not  in  general  a 
half-way  man;  yet  he  preferred  doing  half  the  good 
he  could,  rather  than  do  nothing  at  all.  The  other 
half  might  be  added  when  the  necessity  should  be 
more  fully  experienced." 

Time  has  dispelled  the  fear  of  the  larger  states' 
combining,  and  the  event  has  justified  the  conven 
tion  in  departing  from  the  letter  of  its  commission  and 
supplanting  with  a  better  the  system  it  was  authorized 
only  to  amend ;  but  this  was,  nevertheless,  a  remark 
able  speech.  None  that  preceded  it  had  grasped  the 
entire  problem  of  an  adjustment  so  fully  and  so  firmly. 
Of  all  Ellsworth's  speeches  that  have  been  preserved 
in  any  form,  only  two  or  three  can  be  compared  with 
it.  For  two  days  the  leaders  of  the  national  group 


THE   GREAT   CONVENTION  139 

were  trying  in  vain  to  break  the  force  of  it ;  and  until 
the  vote  was  taken  on  his  motion  —  probably  the  most 
momentous  of  all  the  divisions,  for  the  fate  of  the  con 
vention  seemed  to  depend  on  it  —  he  was  the  leader  of 
his  side.  Up  to  this  time,  whenever  the  second  branch 
was  under  discussion,  Sherman  had  seemed  to  take  the 
lead ;  but  now  Ellsworth's  figure  was  much  the  more 
distinct.  The  state-rights  extremists  had  been  thrust 
aside,  and  he,  with  the  plan  of  a  compromise,  stepped 
into  the  forefront  of  the  opposition. 

Before  the  next  day's  debate  began,  Brearly  of  New 
Jersey  moved  that  a  message  be  sent  to  New  Hamp 
shire  to  urge  the  immediate  attendance  of  her  dele 
gates;  it  was  presumed,  of  course,  that  they  would 
side  with  the  smaller  states.  The  motion  was  voted 
down  as  of  a  nature  to  reveal  to  the  country  the  con 
vention's  peril ;  but  it  had  doubtless  served  its  real 
purpose  as  a  warning  and  reminder.  Wilson,  in  a 
long  speech,  then  assailed  the  reasoning  of  Ellsworth. 
With  skill  and  force  he  rang  the  changes  on  the  great 
injustice  and  unwisdom  of  a  federal  arrangement. 
Should  the  men  in  the  convention  who  represented 
three-fourths  of  the  people  yield  to  those  who  served 
but  one-fourth  ?  In  the  government  to  be  established, 
should  two-thirds  submit  themselves  to  one-third  ? 
For  whom  were  gentlemen  forming  a  government? 
Was  it  for  men,  or  for  imaginary  beings  called 
states  ?  No  one  had  yet  offered  any  explanation  of 
the  danger  of  the  large  states'  combining.  It  was  all 
illusive  and  imaginary.  On  the  other  hand,  it  was 
true  that  the  false  majority  in  the  second  branch 
could  not  carry  measures  over  the  majority  in  the 
first ;  but  they  could  prevent  measures.  And  was  it 


140  OLIVER   ELLSWORTH 

*' 

not  to  remedy  that  very  weakness  the  convention  had 
been  called? 

Ellsworth,  rejoining  immediately,  was  true  to 
Pierce's  account  of  him ;  he  struck  at  once  at  what 
was  strongest  in  his  adversary's  speech. 

"  The  capital  objection  of  Mr.  Wilson,  that  the 
minority  will  rule  the  majority,  is  not  true.  The 
power  is  given  to  the  few  to  save  them  from  the  many. 
If  an  equality  of  votes  had  been  given  to  them  in  both 
branches,  the  objection  might  have  had  weight.  Is  it 
a  novel  thing  that  the  few  should  have  a  check  on  the 
many  ?  Is  it  not  the  case  in  the  British  Constitution, 
the  wisdom  of  which  so  many  gentlemen  have  united 
in  applauding  ?  Have  not  the  House  of  Lords,  who 
form  so  small  a  proportion  of  the  nation,  a  negative  on 
the  laws,  as  a  necessary  defence  of  their  peculiar  rights 
against  the  encroachments  of  the  Commons  ?  No  in 
stance  of  a  confederacy  has  existed  in  which  an  equal 
ity  of  voices  has  not  been  exercised  by  the  members 
of  it.  We  are  running  from  one  extreme  to  another. 
We  are  razing  the  foundations  of  the  building,  when 
we  need  only  repair  the  roof.  No  salutary  measure 
has  been  lost  for  want  of  a  majority  of  the  states  to 
favor  it.  If  security  be  all  that  the  great  states  wish 
for,  the  first  branch  secures  them." 

Even  on  the  danger  of  a  combination  of  the  large 
states,  the  weakest  part  of  his  contention,  this  rejoinder 
was  not  entirely  ineffective.  It  proves,  at  any  rate, 
that  Ellsworth  was  ready  and  resourceful. 

"  The  danger  of  combinations  among  them  is  not 
imaginary,"  he  declared.  "  Although  no  particular 
abuses  could  be  foreseen  by  him,  the  possibility  of  them 
was  sufficient  to  alarm  him.  But  he  could  easily  con- 


THE    GREAT   CONVENTION  141 

ceive  cases  in  which  they  might  result  from  such 
combinations.  Suppose  that  in  pursuance  of  some 
commercial  treaty  or  arrangement  three  or  four  free 
ports,  and  no  more,  were  to  be  established :  would  not 
combinations  be  formed  in  favor  of  Boston,  Philadel 
phia,  and  some  port  in  Chesapeake  ?  A  like  concert 
might  be  formed  in  the  appointment  of  the  great 
officers." 

He  appealed  again  to  the  obligations  of  the  federal 
pact,  which  was  still  in  force,  and  which  had  been 
entered  into  with  so  much  solemnity,  persuading  him 
self  that  some  regard  should  still  be  paid  to  the 
plighted  faith  under  which  each  state,  small  as  well  as 
great,  held  an  equal  suffrage  in  the  general  councils. 
And  he  doubtless  gave  a  greater  moral  force  to  his 
contention  by  adding :  "  His  remarks  were  not  the 
result  of  particular  or  local  views.  The  state  he  repre 
sented  held  a  middle  rank."1 

Madison,  rising  immediately,  "did  justice  to  the  able 
and  close  reasoning  of  Mr.  E.,"  and  strove  to  weaken 
its  effect.  Catching  at  Ellsworth's  assertion  that  in 
all  confederate  governments  there  was  equality  of 
suffrage,  he  cited  instances  to  the  contrary.  But  in 
replying  to  the  plea  for  "  antecedent  plighted  faith  "  he 
fell  into  a  worse  blunder  himself :  he  attacked  Connect 
icut  as  of  all  the  states  the  last  that  should  have  made 
the  plea.  Turning  to  the  real  issue,  he  argued,  wisely 
enough,  that  the  antagonism  truly  to  be  feared  was  not 
between  the  great  states  and  the  little,  but  between 
the  Southern  and  the  Northern.  Yet  he  had  no  plan 
to  propose  by  which  the  two  sections  could  be 
balanced. 

1  Madison  and  Yates,  collated. 


142  OLIVER   ELLSWORTH 

Ellsworth's  quick  rejoinder  must  have  been  effective 
both  as  debating  and  as  oratory.  For  once,  his  old 
labors  at  the  Pay  Table  brought  him  a  reward. 

"  My  state,"  he  said,1  "  has  always  been  federal,  and  " 
—  turning  to  Washington  —  "I  can  with  confidence 
appeal  to  your  excellency  for  the  truth  of  it  during  the 
war.  The  muster  rolls  will  show  that  she  had  more 
troops  in  the  field  than  even  the  state  of  Virginia.  We 
strained  every  nerve  to  raise  them ;  and  we  spared 
neither  money  nor  exertions  to  complete  our  quotas. 
This  extraordinary  exertion  has  greatly  distressed  and 
impoverished  us,  and  it  has  accumulated  our  state  debts. 
We  feel  the  effects  of  it  even  to  this  day.  But  we  defy 
any  gentleman  to  show  that  we  ever  refused  a  federal 
requisition.  We  are  constantly  exerting  ourselves  to 
draw  money  from  the  pockets  of  our  citizens  as  fast  as 
it  comes  in ;  and  it  is  the  ardent  wish  of  the  state  to 
strengthen  the  federal  government.  If  she  has  proved 
delinquent  through  inability,  it  is  no  more  than  others 
have  been,  without  the  same  excuse." 

Sherman  clinched  the  refutation  by  again  pointing 
out  that  Madison's  object  required  him  to  prove  the 
constitution  of  Congress  at  fault :  he  had  only  proved 
the  states  at  fault  What  was  really  needed  was  to 
give  more  power  to  the  government.  As  others  came 
into  the  discussion,  it  grew  every  moment  keener  and 
more  anxious.  Davie  of  North  Carolina  was  much 
moved  by  Ellsworth's  speeches,  and  showed  plainly 
enough  his  discontent  with  the  replies  to  them.  Be 
yond  question,  the  Connecticut  idea  was  gaining  favor. 
For  the  first  time,  Wilson  offered  a  slight  concession, 
agreeing  that  the  smallest  state,  Delaware,  ought  under 

1  Yates,  in  Elliot's  "  Debates,"  I,  469,  470. 


THE   GREAT  CONVENTION  143 

any  ratio  to  have  at  least  one  representative  in  the 
second  branch.  He  and  Rufus  King  of  Massachu 
setts  displayed,  however,  a  strong  resentment  at  the 
half-threat  of  the  small  states  that  without  equality  in 
one  branch  they  would  not  confederate  at  all.  Wilson 
firmly  declared  that  if  this  were  so  he  was  for  letting 
them  withdraw.  King  was  of  the  same  temper,  and 
seemed  to  warn  the  opposition  that  this  was  their  last 
chance  to  come  into  the  Union.  Gunning  Bedford  of 
New  Jersey,  angered  by  this  language,  went  still  far 
ther  in  retorting.  If,  he  said,  the  plan  of  the  majority 
should  go  forth  to  the  people,  this  would  prove,  truly 
enough,  the  last  moment  for  a  fair  trial  in  favor  of 
good  government.  But  he  was  under  no  apprehen 
sions.  "  The  large  states  dare  not  dissolve  the  con 
federation,"  he  declared.  "  If  they  do,  the  small  ones 
will  find  some  ally  of  more  honor  and  good  faith,  who 
will  take  them  by  the  hand  and  do  them  justice." 
Before  he  took  his  seat,  however,  he  tried  to  soften  this 
threat ;  and  before  he  could  be  answered,  Ellsworth, 
rising  for  the  third  time,  spoke  again,  replying  to  a 
question  King  had  put  to  him. 

"  I  am  asked,"  he  said,1  "  by  my  honorable  friend 
from  Massachusetts,  whether,  by  entering  into  a  national 
government,  I  will  not  equally  participate  in  the  national 
security.  I  confess  I  should  ;  but  I  want  domestic  hap 
piness  as  well  as  general  security.  A  general  gov 
ernment  will  never  grant  me  this,  as  it  will  not  know 
my  wants  or  relieve  my  distress.  My  state  is  only  one 
out  of  thirteen.  Can  they  —  the  general  government 
—  gratify  my  wishes  ?  My  happiness  depends  as 
much  on  the  existence  of  my  state  government  as  a 

1  Yates,  in  Elliot's  "  Debates,"  I,  473. 


144  OLIVER   ELLSWORTH 

new-born  infant  depends  upon  its  mother  for  nourish 
ment.  If  this  is  not  an  answer,  I  have  no  other  to 
give." 

But  Bedford  did  not  escape.  King,  an  eloquent 
speaker,  scored  him  severely;  and  with  this  exchange 
the  sitting  ended.  At  the  next,  July  2,  without  any 
more  debate,  Ellsworth's  motion  was  put.  The  vote 
was  a  tie.  For  the  first  time,  the  national,  large- 
states  majority  was  broken. 

It  was  Georgia  that  had  changed.  Her  vote,  hitherto 
regularly  given  to  the  majority,  was  this  time  divided.1 
It  was,  in  fact,  one  man  only  that  had  changed,  and 
that  man  was  Abraham  Baldwin,  a  native  of  Con 
necticut,  a  graduate  and  sometime  tutor  of  Yale,  and 
but  recently  become  a  citizen  of  the  state  which  he 
now  sat  for.  The  facts  countenance  a  conjecture  that 
the  personal  influence  of  the  three  leading  men  of  his 
native  state  may  have  helped  to  turn  him ; 2  but  he 
may  also  have  felt,  as  Georgia  was  the  last  state  to 
vote,  and  had  but  two  representatives,  that  he  and  his 
colleague  had  to  decide  whether  the  convention  should 
continue  in  existence.  He  had  said  that  he  thought 
the  second  branch  ought  to  be  an  aristocratic  body, 
and  his  votes,  both  before  and  after  this  particular 
division,  show  that  he  was  favorable  to  the  national 
view.  The  chances  are  that  to  save  the  convention 
he  had  for  the  time  being  sacrificed  his  own  opinions.3 

The  question  now  was,  Would  the  majority  yield  ? 
The  two  Pinckneys  at  once  brought  forward  an 

1  Maryland  also  was  divided,  on  account  of  Mr.  McHenry's  absence. 
Luther  Martin,  in  Elliot's  "  Debates,"  I,  349. 

2  A  close  student  of  the  literature  of  the  convention  declares,  "  It  is 
ten  to  one  Ellsworth  managed  him." 

8  See  Martin,  in  Elliot's  "  Debates,"  I,  356. 


THE   GREAT   CONVENTION  145 

impossible  plan  for  the  proportional  representation, 
not  of  states,  but  of  sections.  A  committee  was  pro 
posed.  Sherman  said :  "  We  are  now  at  a  full  stop. 
Nobody,  I  suppose,  meant  that  we  should  break  up 
without  doing  anything."  He  favored  a  committee. 
Gouverneur  Morris,  still  for  making  the  second  branch 
the  stronghold  of  property,  also  favored  it.  Wilson, 
disappointed  and  unreconciled,  and  Madison,  still  dis 
trustful,  both  opposed  it.  A  grand  committee  of  one 
from  each  state  was,  however,  chosen  by  ballot.  From 
Connecticut,  Ellsworth  was  taken,  and  the  convention 
had  the  good  sense  to  put  on  Dr.  Franklin  from  Penn 
sylvania.  Everything  was  so  plainly  in  suspense 
until  the  great  point  should  be  decided  that  the  con 
vention  adjourned  over  from  Monday  to  Thursday, 
July  5,  to  wait  for  the  report. 

When  it  came,  it  had  the  form  of  a  compromise ;  but  a 
compromise  in  which,  obtaining  all  that  they  themselves 
had  fought  for,  the  federal  men  offered  to  the  national 
men  something  they  had  not  demanded.  The  com 
mittee  recommended  that  in  the  second  branch  each 
state  should  have  an  equal  vote,  and  that  bills  to  raise 
and  appropriate  money  and  to  pay  official  salaries 
should  originate  in  the  first  branch  and  should  not  be 
altered  or  amended  in  the  second.  The  specific  plan 
was  Franklin's.  Ellsworth  had  not  served  on  the  com 
mittee  ;  a  note  of  Madison's  tells  us  that  he  was  kept 
away  by  indisposition  and  that  Sherman  took  his 
place.  Madison  also  reports  that  in  the  committee 
Sherman  proposed  another  plan.  He  moved,  "  That 
each  state  should  have  an  equal  vote  in  the  second 
branch,  provided  that  no  decision  therein  should  prevail 
unless  the  majority  of  states  concurring  should  also 


146  OLIVER   ELLSWORTH 

comprise  a  majority  of  the  inhabitants  of  the  United 
States ;  "  but  the  motion  was  not  seriously  entertained. 
This  was  substantially  the  same  plan  that  Sherman  had 
proposed  more  than  ten  years  earlier  for  the  Articles 
of  Confederation. 

The  national  men  had  suffered  a  defeat;  but  the 
federal  men  had  not  yet  won  their  victory.  Wilson 
said  the  committee  had  exceeded  their  powers.  Madi 
son  argued  that  the  concession  in  the  matter  of  money 
bills  was  valueless,  and  that  it  would  lead  to  conflicts 
between  the  houses.  Others  attacked  the  proposal  on 
other  grounds.  Ellsworth  merely  remarked  that  he 
had  not  attended  the  meetings  of  the  committee,  but 
was  ready  to  accede  to  the  report.  "  Some  compromise 
was  necessary,  and  he  saw  none  more  convenient  or 
reasonable."  George  Mason  of  Virginia  thought  it 
at  least  preferable  to  an  appeal  to  the  world  by  the 
different  sides.  His  deep  anxiety  was  obvious.  A 
country  gentleman,  and  far  from  home,  he  vowed  that 
he  would  bury  his  bones  in  Philadelphia  rather  than 
leave  his  country  to  the  fate  that  awaited  it  if  the 
convention  failed.  Gerry  of  Massachusetts  spoke  in 
the  same  tone ;  while  on  the  other  side  there  was  not  a 
sign  of  yielding.  For  ten  days  longer,  the  fate  of  the 
compromise  was  still  in  doubt.  On  July  10,  Washing 
ton  wrote  to  Hamilton : l  "  When  I  refer  you  to  the 
state  of  the  counsels  which  prevailed  when  you  left  the 
city,  and  add  that  they  are  now,  if  possible,  in  a  worse 
train  than  ever,  you  will  find  but  little  ground  on 
which  the  hope  of  a  good  establishment  can  be  formed. 
In  a  word,  I  almost  despair  of  seeing  a  favorable  issue 
in  the  proceedings  of  our  convention,  and  do  therefore 

1  Sparks,  "  Writings  of  Washington,"  IX,  260. 


THE   GREAT   CONVENTION  147 

repent  having  had  any  agency  in  the  business." ]  It 
seemed  as  if,  the  longer  the  whole  subject  of  the  con 
stitution  of  the  legislature  was  up,  the  more  the 
members  differed  about  it.  One  new  question  after 
another  continued  to  be  raised.  Should  the  ratio  of 
representation  in  the  first  house  be  based  on  popula 
tion,  or  property,  or  both  ?  At  what  intervals  should 
censuses  be  taken  ?  Until  the  first  was  taken,  what 
should  be  the  ratio  ?  Should  new  states  be  admitted 
to  an  equality  with  the  old  ?  In  estimating  population, 
should  negro  slaves  be  counted  ?  Once  this  last 
inquiry  came  before  the  convention,  it  found  itself 
engaged,  at  the  same  time,  with  two  most  difficult 
antagonisms.  Morris  increased  the  confusion  with  a 
motion  that  taxation  should  be  apportioned  according 
to  representation.  Several  of  these  questions  were 
referred  to  committees.  In  dealing  with  them  all, 
Ellsworth  seems  to  have  been  governed  chiefly  by  a 
steady  purpose  to  carry  through  the  programme  of 
adjustment.  On  July  7,  by  a  vote  of  six  to  three,  the 
clause  conceding  equality  in  the  second  branch  was 
kept  in  the  report.  But  that  was  not  the  end.  At 
every  opportunity,  Wilson  and  Madison  and  Morris 
and  others  were  battling  with  the  drift  toward  Con 
necticut's  position.  Saturday,  July  14,  when  Martin 
called  for  the  question  on  the  whole  report,  they  tried 
to  substitute  another  plan  of  Pinckney's,  which  gave  to 
each  state  a  fixed  number  of  representatives  in  the 
second  branch.  When  they  had  again  recounted  all 
the  old  objections  to  the  federal  convention,  Ellsworth 
merely  rose  and  asked  two  questions.  He  asked 

1  "  We  were  on  the  verge  of  a  dissolution,  scarce  held  together  by  the 
strength  of  a  hair."     Luther  Martin,  in  Elliot's  "  Debates,"  I,  358. 


148  OLIVER   ELLSWORTH 

Wilson  whether,  in  the  old  Congress,  he  had  ever 
seen  a  good  measure  fail  for  want  of  a  majority  of 
states ;  and  he  asked  Madison  whether  a  negative 
lodged  with  a  majority  of  the  states,  even  the  smallest, 
could  be  more  dangerous  than  a  qualified  negative 
lodged  in  a  single  executive  magistrate,  who  must 
be  taken  from  some  one  state. 

Pinckney's  motion  was  defeated,  and  on  Monday, 
the  1 6th,  without  any  more  debating,  the  division  was 
taken.  This  time,  Georgia  was  against  the  plan  of 
compromise ;  but  Caleb  Strong  and  Elbridge  Gerry 
voted  "  ay,"  dividing  Massachusetts,  and  North  Caro 
lina  passed  over  to  the  ays.  New  York  was  absent 
The  vote  was  five  to  four  in  favor  of  the  compromise, 
and  the  decision  proved  to  be  final.  One  week  later, 
Morris  and  King  moved  that  the  voting  in  the  sec 
ond  branch  should  be  per  capita,  and  only  Delaware 
objected.  Ellsworth  remarked  that  he  had  always 
been  in  favor  of  voting  in  that  mode.  The  same  day, 
the  number  of  senators  from  each  state  was  fixed  at 
two.  The  constitution  of  the  Senate  was  determined. 

However,  the  vote  of  the  i6th  was  no  sooner 
taken  than  Randolph,  deeply  vexed,  spoke  of  an  ad 
journment.  Paterson,  taking  him  to  mean  adjourn 
ment  sine  die,  challenged  him  to  move  it.  But  the 
men  from  the  big  states  were  not  ready  to  go  that  far. 
They  did  indeed  show,  plainly  enough,  that  they  were 
bitterly  disappointed.  The  next  day,  before  the  hour 
of  meeting,  they  held  a  conference,  and  some  of  them 
at  that  time  talked  of  forming  a  union  of  their  own, 
without  the  smaller  states.  But  others  were  frankly 
for  giving  up  the  fight.  The  conference  merely  con 
vinced  the  victors  that  they  need  not  be  afraid. 


THE   GREAT  CONVENTION  149 

And  this,  no  doubt,  was  what  the  men  who  made 
the  compromise  had  counted  on.  They  had  judged 
rightly  of  the  lengths  to  which  each  side  would  go. 
It  was  the  state-rights  extremists  who  were  really  dan 
gerous.  Some  of  these,  even  now,  were  far  from  satis 
fied.  Yates  and  Lansing  of  New  York  had  already 
left  the  convention.  Before  the  end,  Luther  Martin 
of  Maryland  also  withdrew.  Neither,  as  the  event 
proved,  had  the  state-rights  sentiment  among  the  peo 
ple  been  overestimated.  As  it  was,  the  extraordinary 
advocacy  of  Hamilton  hardly  succeeded  in  overcoming 
the  state-rights  party  in  New  York.  In  other  states, 
the  fight  for  ratification  was  nearly  as  close.  Rhode 
Island  and  North  Carolina  held  out  several  years. 
Ellsworth  and  his  party  had  been  remarkably  near 
the  truth  in  all  their  calculations. 

If,  now  that  a  hundred  years  and  more  have  passed, 
we  try  to  form  a  judgment  of  their  course  in  all  its 
bearings,  with  all  its  consequences,  we  shall,  I  think, 
conclude  that  it  was  wise.  Ellsworth  was  right  when 
he  declared  both  that  a  compromise  was  necessary  and 
that  no  other  compromise  was  possible.  To  perpetu 
ate  the  union,  a  nation  must  be  formed ;  but  it  had  to 
be  a  federal  nation.  Nor  is  necessity  the  only  ground 
on  which  we  can  defend  the  convention  for  leaving 
the  federal  principle  in  the  government.  It  has,  no 
doubt,  cost  us  heavily  to  keep  it  there.  For  many  of 
our  tasks  and  opportunities,  a  government  completely 
national  might  have  been  much  better.  It  may  be 
argued,  even,  that  but  for  this  concession  to  the  states 
we  never  should  have  had  the  Civil  War.  That,  how 
ever,  is  extremely  questionable.  The  true  causes  of 
the  Civil  War  were  institutional ;  and  constitutions 


150  OLIVER   ELLSWORTH 

do  not,  as  a  rule,  alter  institutions  —  they  are  more 
often  made  and  altered  by  them.  At  any  rate,  nine 
out  of  ten  of  us  would  probably  now  decide  that  the 
federal  principle  is  worth  far  more  than  it  has  ever 
cost.  And  as  for  the  union  of  the  two  principles  in 
one  government,  it  is  hard  to  overestimate  the  value, 
to  us  and  to  mankind,  of  that  invention  or  discovery. 
To  those  who  made  it,  the  world  owes  such  a  debt  as 
that  it  owes  to  the  illustrious  men  who  from  time  to 
time  have  revealed  to  their  fellows  some  new  law  or 
some  new  energy  of  nature.  Their  place  in  the  history 
of  government  is  much  like  Newton's  in  the  history  of 
science,  or  Darwin's,  or  Galileo's.  And  if,  in  nature, 
we  seek  for  a  harmony  of  warring  principles  to  match 
with  this  of  theirs  in  government,  we  find  it  nowhere 
short  of  that  immense  and  noble  equilibrium  which 
throughout  the  entire  solar  system  holds  each  satellite 
loyal  to  its  star,  and  keeps  the  stars,  in  all  their  mighty 
circling,  obedient  to  the  suns. 

Of  Ellsworth's  part,  or  any  other  one  man's  part, 
in  this  most  epochal  achievement,  it  is  not  possible 
to  speak  with  perfect  confidence.  The  material  is  not 
sufficient.  By  a  sort  of  consensus  of  historians,  how 
ever,  the  chief  part  in  it  was  either  his  or  Sherman's. 
It  is  quite  probable  that  from  first  to  last  these  two 
were  acting  together  to  the  same  general  end ;  and 
others  may  have  shared  their  counsels.  By  those  who 
feel  that  Sherman  was  the  leader,  it  is  pointed  out 
that  ten  years  earlier  he  had  taken  much  the  same 
position.  It  was  he,  too,  who  offered  the  first  motion 
looking  to  a  compromise.  He  made  more  speeches 
for  it,  perhaps,  than  any  other.  And  later  on,  after  Ells 
worth  left,  it  was  he  who  first  proposed  to  guarantee  to 


TJ1E   GREAT  CONVENTION  151 

each  state  forever,  even  against  amendments  properly 
proposed  and  ratified,  an  equal  representation  in  the 
Senate.1  Yet  to  one  who  with  an  open  mind  follows  all 
the  motions  and  the  speeches  it  will  appear,  I  think, 
that  Ellsworth's  speeches  were  the  stronger.  His 
position  was  also  closer  than  Sherman's  to  the  final 
stand  of  the  convention,  and  he  spoke,  almost  from  the 
beginning,  with  a  kind  of  authority,  as  one  who  not 
only  knew  his  own  mind,  and  felt  that  he  was  right, 
but  saw  his  way  to  victory.  When,  after  many  re 
verses,  victory  came,  the  fight  was  on  his  motion,  the 
debate  centred  about  his  speeches,  the  leaders  of  the 
other  side  behaved  toward  him  as  if  he  were  the  leader. 
In  Sherman's  first  reference  to  the  particular  plan 
which  finally  prevailed,  he  did  not  speak  of  it  as  if  he 
were  himself  the  author  of  it ;  on  the  contrary,  almost 
to  the  end,  he  said  that  he  preferred  an  appreciably 
different  plan.  When  a  committee  was  appointed, 
Ellsworth  was  chosen  for  Connecticut.  Although  he 
was  indisposed,  and  Sherman  served  in  his  place,  it 
was  not  Sherman  who  suggested  the  form  of  the 
report. 

But  these  two  long-dead  statesmen  were  always, 
while  they  lived,  the  best  of  friends.  After  Sherman 
died,  Ellsworth  never  failed,  when  he  went  to  New 
Haven,  to  pay  a  visit  to  the  other's  grave.  Perhaps 
we  do  them  both  a  wrong  to  drag  them  into  a  post 
humous  rivalry  for  glory  they  were  both  content  to 
share. 

From  this  achievement  of  the  two  Connecticut 
leaders  we  must  turn  to  another  chapter  of  the  con- 

1  See  letter  of  George  Frisbie  Hoar  —  a  grandson  of  Sherman  —  printed 
as  an  appendix  to  H.  C.  Lodge's  "  A  Fighting  Frigate,  and  Other  Essays." 


152  OLIVER  ELLSWORTH 

vention's  history  in  which  they  are  seen  by  no  means 
at  their  best.  The  differences  over  the  ratio  of  repre 
sentation  had  led,  almost  at  once,  to  a  controversy  over 
slavery,  and  on  that  issue  they  took  a  stand  which  it 
is  now  hardly  possible  to  approve. 

On  the  question  of  how  negro  slaves  should  be 
treated,  whether  as  men  or  as  property,  Sherman  and 
Ellsworth  had  both  adhered  to  the  arrangement  first 
proposed  in  April,  1783,  when  Ellsworth  was  in  Con 
gress.  Utterly  illogical  as  it  was,  the  plan  of  treating 
five  slaves  as  equivalent  to  three  free  white  men  had  got 
already  a  wide  acceptance.  It  had,  therefore,  a  certain 
advantage  over  every  other  plan  proposed.  Advanc 
ing  from  it  as  from  a  concession  already  made  to  her 
interests,  South  Carolina  now  demanded  representa 
tion  for  all  the  slaves.  Gouverneur  Morris  and  one  or 
two  other  members  protested  bitterly  against  recogniz 
ing  slavery  in  any  way,  but  from  the  first  it  seems  to 
have  been  felt  that  their  uncompromising  view  could 
not  prevail.  The  practical  question  being  merely  how 
much  should  be  conceded  in  order  to  keep  Georgia 
and  the  Carolinas  in  the  Union,  Ellsworth,  who 
stood  committed  to  the  three-fifths  ratio  as  a  basis  for 
taxation,  was  for  making  it  the  basis  of  representa 
tion  also.  After  Morris  had  carried  through  his  reso 
lution  "  that  direct  taxation  ought  to  be  proportioned 
to  representation,"  and  after  Morris  and  Davie  of 
North  Carolina  had  exchanged  strong  language  over 
slavery,  Ellsworth  moved  the  three-fifths  rule,  to  hold 
until  a  census  should  be  taken.  Randolph  wished  to 
make  the  rule  perpetual,  and  this  substitute  Ellsworth 
readily  accepted.  July  12,  Pinckney's  motion,  that  all 
the  slaves  be  counted,  was  voted  down,  Randolph's 


THE   GREAT   CONVENTION  153 

proposal  was  adopted,  and  from  that  time  the  three- 
fifths  rule  never  seems  to  have  been  in  any  real 
danger.  It  was  accepted  as  a  part  of  the  great  com 
promise. 

It  was  late  in  August  before  Ellsworth  spoke  again 
on  slavery.  The  resolutions,  shaped  now  into  a  for 
mal  constitution,  were  passing  the  third  time  in  review. 
The  powers  of  Congress  were  under  discussion,  and 
two  proposals,  not  apparently  related,  were,  neverthe 
less,  quickly  associated  by  the  spirit  of  compromise 
and  bargain.  The  New  England  states  were  for  giv 
ing  Congress  complete  control  of  foreign  commerce, 
with  power  to  pass  a  navigation  act ;  and  the  oppo 
nents  of  slavery  were  for  giving  it  power  to  prohibit 
the  foreign  slave  trade.  In  this  second  proposal 
Virginia  heartily  concurred ;  she  had  already  pro 
hibited  the  traffic.  But  Georgia  and  the  Carolinas 
stood  out  against  the  plan.  These  two  states,  having 
little  or  no  shipping  interest  of  their  own,  were  also 
opposed  to  a  navigation  act.  Fearing  that  the  East 
ern  ship-owners  might  acquire  a  monopoly  of  the  carry 
ing  trade,  they  were  quite  willing  to  continue  to  make 
use  of  foreign  bottoms.  The  draft  of  the  Constitution 
then  before  the  convention  denied  to  Congress  the 
power  to  prohibit  the  slave  trade  and  gave  it  the  power 
to  pass  a  navigation  act  by  a  two-thirds  vote  of  both 
houses.  Luther  Martin  had  moved  to  grant  Congress 
control  over  the  slave  trade  also,  and  Rutledge  had 
answered  him,  when  Ellsworth  rose.1  The  true  ques 
tion,  Rutledge  had  bluntly  declared,  was  whether  the 
Southern  states  should  or  should  not  be  parties  to  the 
union.  He  put  the  matter  wholly  on  the  ground  of 

1  August  21,  "Documentary  History  of  the  Constitution,"  III,  584. 


154  OLIVER   ELLSWORTH 

interest;    religion   and    humanity,    he    declared,    had 
nothing  to  do  with  it. 

Ellsworth  seems  to  have  agreed  with  this  contention. 
He  was  for  leaving  the  clause  as  it  stood.  "  Let  every 
state  import  what  it  pleases,"  he  said.  "  The  morality 
or  wisdom  of  slavery  are  considerations  belonging  to 
the  states  themselves.  What  enriches  a  part,  enriches 
the  whole,  and  the  states  are  the  best  judges  of  their 
particular  interest.  The  old  confederation  had  not 
meddled  with  this  point,  and  he  did  not  see  any  greater 
necessity  for  bringing  it  within  the  policy  of  the  new 


one." 


The  next  day,  the  debate  grew  general  and  heated. 
Sherman  indorsed  Ellsworth's  position,  and  a  noble 
speech  of  George  Mason  of  Virginia  contrasted 
strangely  with  the  language  of  these  two  New  Eng 
land  representatives.  Mason  bitterly  bewailed  the  fact 
of  slavery,  and  upbraided  sternly  all  who  still  engaged 
in  the  "nefarious  traffic,"  sparing  neither  the  ship 
owners  of  the  East  nor  the  planters  of  the  lower 
South.  No  better  arraignment  of  the  whole  system 
was  ever  made. 

It  is  impossible  to  read  Ellsworth's  reply  with  any 
satisfaction.  As  he  had  never  owned  a  slave,  he  said, 
he  could  not  judge  of  the  effect  of  slavery  on  char 
acter.  If,  however,  it  was  to  be  considered  in  a  moral 
light,  the  convention  ought  to  go  farther  and  free  those 
already  in  the  country.  "  As  slaves  also  multiply  so 
fast  in  Virginia  and  Maryland  that  it  is  cheaper  to 
raise  than  import  them,  whilst  in  the  sickly  rice  swamps 
foreign  supplies  are  necessary,  if  we  go  no  farther  than 
is  urged,  we  shall  be  unjust  toward  South  Carolina  and 
Georgia.  Let  us  not  intermeddle.  As  population 


THE   GREAT  CONVENTION  155 

increases,  poor  laborers  will  be  so  plenty  as  to  render 
slaves  useless.  Slavery  in  time  will  not  be  a  speck  in 
our  country.  Provision  is  already  made  in  Connecti 
cut  for  abolishing  it.  And  the  abolition  has  already 
taken  place  in  Massachusetts.  As  to  the  danger  of 
insurrection  from  foreign  influence,  that  will  become 
a  motive  to  kind  treatment  of  slaves." 

The  sarcasm,  if  that  was  what  he  meant  his  open 
ing  for,  was  wasted  on  a  character  like  Mason's. 
The  intimation  that  Virginia  was  merely  seeking  her 
own  interest  as  a  breeder  of  slaves  was  also  unjust; 
Washington  and  Madison,  as  well  as  Mason,  have  left 
on  record  too  many  proofs  that  they  were,  from  convic 
tion  and  from  conscience,  antislavery  men.  The  ap 
peal  for  "justice"  to  the  "sickly  rice  swamps"  is  even 
less  defensible.  Nowadays,  in  fact,  it  is  the  disposition 
of  moralists  to  condemn  any  statesman  who  at  any 
period,  on  any  grounds,  declined  to  consider  slavery  as 
a  moral  question.  A  biographer  of  Gouverneur  Mor 
ris,  pointing  out  the  striking  contrast  between  the 
sentiments  of  Mason  and  those  of  the  New  England 
members,  impetuously  attacks  the  entire  New  Eng 
land  delegation,  and  singles  out  Ellsworth's  speech 
for  particularly  severe  dispraise.1 

Much,  of  course,  can  be  said,  and  has  been  said,  for 
Ellsworth  and  those  who  saw  the  question  as  he  did. 
Quite  probably,  General  Pinckney  was  right  when  he 
declared  that  if  he  and  his  colleagues  were  to  go  home 
and  use  all  their  influence,  they  could  not  persuade 
their  people  to  accept  the  Constitution  without  some 
protection  for  the  slave  trade.  Ellsworth  was  by  this 

1  Roosevelfs  "Gouverneur  Morris"  (American  Statesmen  series),  138- 
139- 


156  OLIVER   ELLSWORTH 

time  fully  committed  to  the  general  scheme  of  the 
Constitution  and  anxious  to  see  it  adopted  and  ratified. 
That  same  day  he  declared  that  he  was  for  the  plan 
as  a  whole.  The  widening  of  opinion,  he  said,  had  a 
threatening  aspect.  If  members  would  not  agree  on 
this  middle  and  moderate  ground,  he  was  afraid  they 
would  lose  two  states,  with  such  others  as  might 
be  disposed  to  stand  aloof,  and  fly  into  a  variety  of 
shapes,  most  probably  into  several  confederations, 
and  that  not  without  bloodshed.  Concerning  another 
disagreement,  he  had  remarked : 1  "  We  grow  more  and 
more  sceptical  as  we  proceed.  If  we  do  not  decide 
soon,  we  shall  be  unable  to  come  to  any  decision." 

There  were  also,  it  must  be  granted,  many  signs  to 
justify  his  hope  that  slavery  might,  before  many  years, 
shrink  into  unimportance.  Economic  laws  were  work 
ing  to  that  end;  the  antislavery  feeling,  North  and 
South,  was  strong  and  growing.  No  one,  of  course, 
foresaw  the  invention  of  the  cotton-gin  and  the  rise  of 
the  cotton  kingdom.  Of  course,  too,  on  any  moral 
question,  something  must  be  pardoned  to  the  stand 
ards  of  another  age.  But  if,  to  prove  the  wisdom  of 
the  first  great  compromise,  we  consulted  the  outcome, 
we  are  driven  by  the  same  reasoning  to  grant  that  it 
was  neither  wise  nor  righteous  to  spare  the  slave  trade  ; 
that  the  convention  lost  a  precious  opportunity  to 
promote  the  cause  of  human  freedom.  The  chances 
were  that  if  Georgia  and  South  Carolina  withdrew 
North  Carolina  as  well  as  Virginia  would  refuse  to 
follow  them.  The  line  between  slavery  and  freedom 
might  thus  in  a  few  years  have  been  pushed  a  thou 
sand  miles  southward.  An  independent  Southern 

1  August  15,  when  the  President's  veto  power  was  under  discussion. 


THE   GREAT   CONVENTION  157 

confederacy  of  two  states  would  not  have  been  dan 
gerous,  and  would  probably  have  been  short-lived. 
The  Civil  War  might  have  been  averted.  The 
darkest  and  bloodiest  pages  in  all  our  history  might 
never  have  been  written. 

But  neither  the  moral  scruple  nor  a  forecast  of  the 
long  future  determined  the  convention's  course.  The 
matter  was  disposed  of  by  another  compromise.  It  is 
possible  that  even  while  Ellsworth  was  replying  to 
Mason  the  terms  of  a  bargain  between  New  England 
and  the  lower  South  were  already  substantially  agreed 
upon.  The  clauses  on  the  slave  trade  and  on  naviga 
tion  acts  were  both  referred  to  the  same  committee  of 
one  from  each  state.  They  reported  in  favor  of  giving 
Congress  the  power  to  pass  navigation  acts  and  for 
bidding  it  to  impose  any  restriction  on  the  slave  trade, 
other  than  a  duty  at  the  average  rate,  before  the  year 
1800.  When  the  report  came  up  for  consideration, 
General  Pinckney  of  South  Carolina  moved  to  strike 
out  1800  and  insert  1808,  and  Gorham  of  Massachu 
setts  seconded  him.  The  motion  was  passed  by  the 
votes  of  all  the  New  England  states  and  all  the 
Southern  states  except  Virginia  and  Delaware.  By 
the  same  vote,  the  amended  part  of  the  report  was 
then  accepted.  It  is  no  wonder  that  Charles  Pinck 
ney  took  occasion  later  to  praise  the  New  England 
delegates  for  "  their  liberal  conduct  toward  the  views 
of  South  Carolina."  That  there  was  an  understand 
ing  on  the  subjects  of  navigation  and  slavery,  Madison 
tells  us  in  so  many  words.  Johnson  was  the  Connecti 
cut  member  of  the  committee,  but  it  is  idle  to  suppose 
that  Ellsworth  or  any  other  New  England  member 
was  ignorant  of  the  bargain. 


158  OLIVER   ELLSWORTH 

Indeed,  there  were  probably  few  important  things 
done  in  the  convention,  after  the  great  compromise, 
that  Ellsworth  did  not  have  a  hand  in.  By  his  part 
in  that  arrangement  he  had,  as  an  individual  member, 
proved  his  case  with  his  fellows;  and  when  it  was 
adopted  he  and  others  who  had  seemed  to  be  in  oppo 
sition  became  at  once  keenly  desirous  that  the  con 
vention  should  succeed.  When  the  resolutions  had 
passed  through  the  second  revision,  they  were  given 
over  to  a  committee  of  five,  chosen  by  ballot,  with 
instructions  to  report  a  constitution ;  and  of  these 
five  Ellsworth  was  one.  This  was  a  great  honor 
and  a  great  responsibility.  The  other  four  were  Rut- 
ledge,  Randolph,  Gorham,  and  Wilson.  For  ten  days 
these  men  had  in  their  hands  the  entire  scheme  of  the 
proposed  government.  Of  what  they  said  and  did  in 
committee  we  have  no  record,  but  they  did  not  con 
fine  themselves  to  questions  of  mere  form;  in  many 
important  respects,  the  instrument  which  they  re 
ported  differed  from  the  resolutions  it  was  based 
on.  This  was  particularly  true  of  those  provisions 
which  related  to  the  judiciary.  The  resolutions  had 
been  vaguer  concerning  that  department  than  on  any 
other  subject.  The  shaping  of  it  was  left  to  the  com 
mittee;  and  in  this  work,  no  doubt,  Ellsworth  took 
much  interest.  Curiously  enough,  however,  hardly 
any  of  his  speeches  in  the  convention  dealt  with  the 
judiciary.  When  the  method  of  appointing  judges 
was  up,  he  urged  that  instead  of  giving  the  Senate 
a  negative  on  appointments  by  the  executive  the 
convention  should  give  the  initiative  to  the  Senate 
and  the  negative  to  the  executive ;  but  to  both  these 
arrangements  he  preferred  an  absolute  appointment  by 


THE   GREAT   CONVENTION  159 

the  Senate.1  His  only  other  reference  to  the  depart 
ment  was  made  incidentally,  when  he  favored  Wilson's 
motion  to  associate  the  Supreme  Court  judges  with  the 
executive  in  the  revision  of  laws.2  He  himself  later 
moved  for  an  executive  council  of  which  the  Chief 
Justice  should  be  a  member.3 

But  his  contributions  to  the  discussion  of  other 
subjects,  particularly  after  his  service  on  the  com 
mittee,  were  numerous.  He  often  spoke  three  or 
four  times  in  a  single  sitting,  usually  in  defence  of 
some  clause  as  it  stood,  and  somewhat  in  the  manner 
of  a  congressman  in  charge  of  a  bill  on  its  passage. 
Yet  there  were  some  amendments  which  he  warmly 
favored. 

Though  for  a  long  time  strongly  opposed  to  paying 
members  of  the  legislature  out  of  the  national  Treas 
ury,  on  this  point  he  finally  changed  his  mind.4  But 
he  never  would  consent  to  give  Congress  a  negative 
on  state  laws.  That  concession,  he  observed,  would 
mean  either  that  all  state  laws,  before  taking  effect, 
should  be  submitted  to  Congress,  or  that  Congress 
should  have  the  right  to  repeal  them,  or  else  that 
the  general  government  should  appoint  the  state 
executives  and  these  should  have  the  veto  power.5 
He  was  against  Mason's  proposal  of  national  sumptu 
ary  laws ; 6  and  he  remained  firm  also  against  the 
plan  of  taking  away  from  the  states  the  right  to  fix 
the  qualifications  for  the  suffrage  in  all  cases.  It  was 
a  tender  point,  he  said,  and  each  state  was  the  best 
judge  of  the  temper  and  the  circumstances  of  its  own 

1  "  Documentary  History  of  the  Constitution,"  III,  401 . 

2  Ibid.,  391 .  4  Ibid.,  531,  534.  6  Ibid.,  567. 
9  Ibid.,  559.                       8  Ibid.,  602-603. 


160  OLIVER   ELLSWORTH 

people.1  If  property  or  other  qualifications  were  to  be 
imposed,  uniform  rules  would  prove  unequal  in  their 
application ;  each  state  ought  to  fix  its  own  qualifica 
tions.2  To  other  clauses  dealing  with  the  legislature 
he  applied  observations  drawn  from  his  own  experience. 
He  did  not,  for  instance,  overvalue  the  concession  to 
the  first  branch  of  the  right  to  originate  money  bills.3 
He  was  against  the  proposal  to  fix  minimum  quorums 
for  both  the  houses,  preferring  the  majority  rule ; 4  and 
when  it  was  moved  to  give  every  member  a  right  to 
call  for  the  yeas  and  nays,  he  agreed  with  Sherman 
that  yeas  and  nays  never  did  any  good.5  He  pre 
ferred  winter  sessions.6  He  was  willing  to  give  up 
a  clause  requiring  each  house  to  keep  and  publish  a 
journal,  feeling  that  public  opinion  would  secure  pub 
licity.7  He  wished  the  disqualification  of  congress 
men  for  all  other  offices  extended  a  year  beyond  their 
terms  of  service.8  This,  he  thought,  would  not  deter 
ambitious  men  from  serving,  and  there  was  a  danger 
that  too  many  honors  would  go  to  members.  But  on 
the  other  hand  he  was  for  requiring  only  a  short  term 
of  residence  in  any  particular  state  to  qualify  a  man 
for  representing  it.9  This  principle  he  applied  also 
to  foreign-born  citizens.10  He  was  against  the  sweep 
ing  disqualification  of  all  public  debtors,11  and  he  was 
for  permitting  governors  to  fill  vacancies  in  the  Senate 
when  these  should  occur  between  sessions  of  the  legis 
latures  in  the  states  concerned.12  On  most  of  these 
questions,  but  not  on  all,  time  has  confirmed  his 
judgment. 

1  "Documentary  History  of  the  Constitution,"  III,  464,  565. 

2  Ibid.,  494-495,  496.  6  Ibid.,  460,  462.  10  Ibid.,  485. 

8  Ibid.,  480,  482.  7  Ibid.,  503.  n  Ibid.,  441-442 

4  Ibid.,  499.  8  Ibid.,  529.  12  Ibid.,  476. 

5  Ibid.,  501.  9  Ibid.,  464,  465. 


THE   GREAT   CONVENTION  161 

When  it  came  to  fixing  the  powers  of  Congress,  and 
particularly  when  there  arose  proposals  to  enlarge  them 
at  the  cost  of  the  state  governments,  his  opinions  were 
decided,  and  on  several  of  these  issues  he  stood  out 
stoutly  for  state-rights.  In  view  of  Connecticut's  be 
havior  during  the  War  of  1812,  it  is  particularly  inter 
esting  to  find  that  he  and  Sherman  fought  harder  than 
any  of  the  delegates  except,  perhaps,  Gerry  of  Massa 
chusetts,  to  retain  for  the  states  the  control  of  the 
militia.  When  it  was  first  moved  to  give  the  control 
mainly  to  the  general  government,  Ellsworth  would 
have  amended  the  motion  with  such  provisos  as  to 
take  away  its  force.  He  thought  that  if  this  authority 
should  pass  from  the  state  governments  they  would  pine 
away  to  nothing,  and  that  the  general  government,  on 
the  other  hand,  "could  not  sufficiently  pervade  the 
Union  for  such  a  purpose,  nor  could  it  accommodate 
itself  to  the  local  genius  of  the  people." 1  The  states, 
besides,  would  never  submit  to  uniform  militia  laws. 
"  Three  or  four  shillings  as  a  penalty  would  enforce 
obedience  better  in  New  England  than  forty  lashes  in 
some  other  places."2  The  subject  was  referred,  along 
with  the  question  of  state  debts,  to  another  grand 
committee,  which  reported  back  the  provision  finally 
adopted.3  Ellsworth  carried  a  motion  to  table  the  re 
port,  and  when  it  was  again  taken  up  he  and  Sherman 
tried  to  emasculate  the  clause;  they  proposed  to  give 
Congress  the  power  merely  to  make  rules  which  the 
states  should  execute.4  Fortunately,  Connecticut  was 
the  only  state  that  voted  for  their  substitute.  The 
second  war  with  Great  Britain  has  not  been  the  only 

1  "  Documentary  History  of  the  Constitution,"  III,  562. 

2  Ibid,,  563.  8  Ibid.,  575.  *  Ibid.,  594-598. 
M 


1 62  OLIVER  ELLSWORTH 

occasion  when  there  has  been  good  cause  for  regret 
that  even  fuller  control  was  not  given  to  the  national 
authorities.  When  the  power  of  Congress  to  suppress 
rebellion  in  any  state  was  under  consideration,  Ells 
worth  had  also  favored  a  proviso  that  this  should  be 
done  only  on  the  call  of  the  state  legislature*  if  it  could 
meet.1  On  the  troublesome  question  of  state  debts, 
however,  he  seems  to  have  favored  assumption  by  the 
general  government.2  For  reasons  which  he  himself 
called  "  solid,"  as  they  were,  he  was  against  the  tax 
ing  of  exports  by  Congress,  but  he  seemed  to  think 
that  there  was  no  necessity  to  forbid  the  states  to  do 
it.8  "  The  attempts  of  one,"  he  argued,  "  to  tax  the 
exports  of  another  passing  through  its  hands  will  force 
a  direct  exportation  and  defeat  themselves."  He  was 
also  —  as  who,  with  his  experience,  would  not  have 
been?  —  for  withholding  from  Congress  the  power  to 
emit  bills  of  credit.4  He  wished  to  improve  the  good 
opportunity  to  "  shut  and  bar  the  door  against  paper 
money.  The  mischiefs  of  the  various  experiments 
which  had  been  made  were,"  he  said,  "fresh  in 
the  public  mind  and  had  excited  the  disgust  of  all 
the  respectable  part  of  America.  By  withholding  the 
power  from  the  new  government  more  friends  of  influ 
ence  would  be  gained  by  it  than  by  anything  else. 
Paper  money  can  in  no  case  be  necessary.  Give  the 
government  credit,  and  other  resources  will  follow. 
The  power  may  do  harm,  never  good." 

Nor  did  he  oppose  the  denial  of  this  power  to  the 
states.  His  general  notion  of  the  proper  relation 
between  the  Union  and  the  states  is  perhaps  best  re- 

1  "Documentary  History  of  the  Constitution,"  III,  551-552. 

a  Ibid.,  557,  576.  8  Ibid.,  543,  578-579-  4  Ibid->  547- 


THE   GREAT   CONVENTION  163 

vealed  in  two  or  three  short  speeches  on  the  treason 
clause  and  on  the  question  of  how  the  Constitution 
should  be  ratified.1  When  Madison  pointed  out  that 
the  same  act  might  be  treason  against  the  United 
States  and  also  be  punishable  as  treason  under  the 
laws  of  a  particular  state,  Ellsworth  thought  the  na 
tional  government  was  in  no  danger,  since  its  laws 
were  paramount.  But  a  discussion  at  once  arose  over 
sovereignty,  and  Johnson  was  one  of  those  who  thought 
that  sovereignty  was  lodged  in  the  Union.  Ellsworth, 
however,  declared :  "  The  United  States  are  sovereign 
on  one  side  of  the  line  dividing  their  jurisdictions  — 
the  states  on  the  other.  Each  ought  to  have  power  to 
defend  their  respective  sovereignties."  These  were 
words,  one  fancies,  from  which  comfort  might  have  been 
drawn  by  the  planners  of  a  New  England  Confederacy 
twoscore  years  later,  and  by  the  builders  of  the  South 
ern  Confederacy.  It  is  not  surprising  to  find  also  that 
Ellsworth  apparently  never  did  conceive  of  the  people 
of  the  whole  country  either  as  the  true  constituency  of 
the  convention  or  as  the  source  of  authority  for  the 
new  government.  At  one  stage  in  the  gradual  develop 
ment  of  the  Constitution  he  moved  to  refer  it  for  final 
ratification  to  the  legislatures  of  the  several  states,  in 
stead  of  conventions.  Mason  objected  that  the  legis 
latures  had  no  authority,  and  that  their  successors 
might  rescind  their  acts.  "  As  to  the  second  point," 
Ellsworth  answered,  "  he  could  not  admit  it  to  be  well 
founded.  An  Act  to  which  the  States  by  their  legisla 
tures  make  themselves  parties  becomes  a  compact  from 
which  no  one  of  the  parties  recedes  of  itself.  As  to 
the  first  point,  he  observed  that  a  new  set  of  ideas 

1  "  Documentary  History  of  the  Constitution,"  III,  569,  570,  572. 


1 64  OLIVER   ELLSWORTH 

seemed  to  have  crept  in  since  the  Articles  of  Confedera 
tion  were  established.  Conventions  of  the  people,  or 
with  power  derived  expressly  from  the  people,  were  not 
then  thought  of.  The  legislatures  were  considered  as 
competent.  Their  ratification  has  been  acquiesced  in 
without  complaint.  To  whom  have  Congress  applied 
on  subsequent  occasions  for  further  powers  ?  To  the 
Legislatures ;  not  to  the  people.  The  fact  is  that  we 
exist  at  present,  and  we  need  not  inquire  how,  as  a 
federal  Society,  united  by  a  charter,  one  article  of 
which  is  that  alterations  therein  may  be  made  by  the 
Legislative  authority  of  the  States.  It  has  been  said 
that  if  the  confederation  is  to  be  observed,  the  States 
must  unanimously  concur  in  the  proposed  innovations. 
He  would  answer  that  if  such  were  the  urgency  and 
necessity  of  our  situation  as  to  warrant  a  new  compact 
among  a  part  of  the  States,  founded  on  the  consent  of 
the  people,  the  same  plea  would  be  equally  valid  in 
favor  of  a  partial  compact,  founded  on  the  consent  of 
the  Legislatures."  To  this  keen  dialectics  Gouverneur 
Morris  made  an  even  keener  reply,  and  Ellsworth's  mo 
tion  was  voted  down.  But  it  is  not  improbable  that 
the  majority  of  his  fellows  were  as  slow  as  he  was 
to  understand  how  far  they  were  actually  moving  away 
from  the  theory  and  practice  of  the  confederation. 

In  more  than  one  eulogy  of  Ellsworth,  John  C. 
Calhoun  is  quoted  in  his  praise.  Calhoun's  words 
are  worth  quoting,  and  his  praise  worth  having;  but 
it  is  quite  probable  that  Ellsworth  himself,  a  little 
farther  on  in  his  career,  would  have  relished  an 
emphasis  on  what  he  did  in  the  convention  to  turn 
the  confederation  into  a  real  Union  better  than  re 
minders  of  what  he  did  to  keep  the  Union  from 


THE   GREAT  CONVENTION  165 

acquiring  too  great  strength.  Calhoun's  tribute  is 
in  a  speech  delivered  in  the  Senate  in  I847.1  "  It 
is  owing,"  he  said,  "  mainly  to  the  states  of  Connect 
icut  and  New  Jersey  that  we  have  a  federal  instead 
of  a  national  government  —  the  best  government  in 
stead  of  the  worst  and  most  intolerable  on  the  earth. 
Who  are  the  men  of  these  states  to  whom  we  are 
indebted  for  this  excellent  form  of  government?  I 
will  name  them.  Their  names  ought  to  be  written  on 
brass,  and  live  forever.  They  were  Chief  Justice  Ells 
worth  and  Roger  Sherman  of  Connecticut,  and  Judge 
Paterson  of  New  Jersey.  The  other  states  further 
south  were  blind ;  they  did  not  see  the  future.  But 
to  the  coolness  and  sagacity  of  these  three  men,  aided 
by  others  not  so  prominent,  do  we  owe  our  present 
constitution."2 

Ellsworth  had  taken  a  lively  interest  in  the  clauses 
relating  to  the  executive ;  and  he  seems  to  have  had 
clearer  notions  about  it  than  most  of  the  delegates. 
This  was  the  subject  on  which  the  convention  was, 
from  first  to  last,  most  at  sea.  In  discussing  it,  the 
members  did  not,  it  is  true,  divide  by  states  and  sec 
tions  quite  as  they  did  over  the  legislature ;  but 
there  was  the  widest  diversity  of  opinion,  particu 
larly  over  the  method  of  election.  In  the  course 
of  the  first  two  months,  as  Mason  pointed  out,  no 
less  than  seven  different  plans  were  suggested.8 

1  Congressional  Globe,  2d  Session,  2Qth  Congress,  466. 

2  It   is  worth    recalling  that   Calhoun,  after  being  graduated  at  Yale, 
remained  a  year  or  two  longer  in  Connecticut  studying  law.      It  is  not 
likely  that  he  failed  to  learn  what  he  could  of  the  little  state's  more  famous 
representatives  in  public  life,  and  it  is  said  that  he  was  well  acquainted 
with    members    of    Ellsworth's    and    Sherman's    families.      See   G.    F. 
Hoar's  "Autobiography,"  I,  8. 

3  "  Documentary  History  of  the  Constitution,"  III,  432-433. 


1 66  OLIVER   ELLSWORTH 

One  of  them  actually  included  the  expedient  of  a 
lottery.  Ellsworth  was  one  of  the  first  to  commit 
himself  to  the  plan  of  a  choice  by  electors.1  July  19, 
he  moved  to  strike  out  the  original  provision,  for  ap 
pointment  by  the  national  legislature,  and  substitute 
the  words,  "  to  be  chosen  by  electors  appointed  by 
the  legislatures  of  the  States  in  the  following  ratio: 
to  wit  —  one  for  each  state  not  exceeding  200,000 
inhabitants,  two  for  each  above  that  number  and  not 
exceeding  300,000,  and  three  for  each  state  exceeding 
300,000." 2  After  a  little  discussion,  the  convention 
voted  by  good  majorities  in  favor  of  the  plan,  but 
without  the  ratio.  It  was  very  much  closer  to  the 
plan  finally  adopted  than  any  other  that  had  been 
proposed.  The  same  day,  Ellsworth  favored  a  six 
years'  term.  He  argued  that  if  the  term  were  made 
too  short,  the  executive  would  not  be  firm  enough. 
There  must  be  duties  which  would  render  him  un 
popular  for  the  moment,  and  every  administration 
would  be  attacked  and  misrepresented.  Six  years 
was  agreed  to.  But  the  convention  changed  its  mind 
more  than  once  before  it  reached  the  final  decision 
of  these  questions.  Five  days  later,  the  subject  was 
reconsidered,  and  by  a  vote  of  seven  to  four8  the 
method  of  appointment  by  the  national  legislature 
was  again  preferred.  It  was  also  proposed  to  reinstate 
a  provision  that  the  executive  should  not  be  eligible 
for  a  second  term,  and  this  Ellsworth  briefly  opposed.4 
To  many  minds,  he  admitted,  it  seemed  a  necessary 

1  June  2,  in  committee  of  the  whole  house,  Wilson  had  proposed  an 
electoral  college,  to  be  chosen  by  districts,  without  reference  to  state  lines. 
It  was  voted  down  with  very  little  discussion.     "  Documentary  History  of 
the  Constitution,"  III,  41-42. 

2  Ibid.,  379-380.  8  Ibid.,  414-417.  *  Ibid.,  417. 


THE   GREAT   CONVENTION  167 

corollary  to  the  choice  by  the  national  legislature ; 
but  he  felt  that  a  good  executive  ought  in  any  case 
to  be  reelected.  The  hope  of  an  indorsement  would 
lead  him  to  deserve  it.  Eminent  characters  might 
be  unwilling  to  assume  the  trust  if  they  must  always 
expect  a  degradation  after  a  fixed  period  of  service. 
The  next  day,  he  opened  the  discussion  with  a  new 
motion,  offering  a  compromise  between  the  two 
methods  of  choice.1  It  would  have  permitted  the 
national  legislature  to  elect,  but  not  to  reelect,  the 
choice  passing  to  electors  whenever  the  question  of  a 
second  term  should  arise.  The  special  object  of  it 
was  to  avert  what  many  dreaded  —  too  great  depend 
ence  of  the  executive  on  the  legislature.  Madison,  in 
an  elaborate  speech,  favoring  an  election  by  the 
whole  body  of  the  people,  Ellsworth  firmly  objected.2 
Like  so  many  of  his  fellows,  he  was  still  obsessed 
with  the  idea  of  an  opposition  between  the  two  classes 
of  states,  and  nobody  seems  to  have  foreseen  the  part 
which  political  parties  were  to  play.  But  it  cannot  be 
said  that  his  objection  was  entirely  mistaken.  Parties 
do  as  a  rule  prefer  candidates  from  states  which  are 
at  once  doubtful  and  populous.  Ellsworth's  compro 
mise  proposal  failed,8  and  on  Mason's  motion  the  reso 
lution  went  to  the  committee  of  detail  as  it  had  been 
reported  from  the  committee  of  the  whole.  Incorpo 
rated  that  way  in  the  first  draft  of  the  Constitution,  it 
was  retained  until  very  near  the  end.  When  Ells 
worth's  plan  of  a  choice  by  electors  was,  with  some 
changes,  finally  accepted,  he  himself  was  gone. 

The  last  appearance  of  his  name  in  Madison's  jour- 

1  "Documentary  History  of  the  Constitution,"  III,  423. 

2  Ibid,,  427.  s  Ibid. 


1 68  OLIVER   ELLSWORTH 

nal  is  under  the  date  August  23.  That  day  he  made 
two  speeches.  Four  days  later,  on  his  way  home, 
he  paid  a  visit  to  President  Stiles  of  Yale  at  New 
Haven.1  One  suggested  explanation  of  his  departure 
is  that  he  and  Sherman  could  not  both  neglect  any 
longer  their  duties  on  the  bench.2  He  had  no  part  in 
the  closing  scenes  of  the  convention,  and  lost  also  the 
chance  to  sign  the  Constitution.  That  circumstance 
may  perhaps  have  helped  to  obscure  his  share  in  fram 
ing  it.  According  to  his  unvarying  habit  of  reticence 
and  modesty,  he  himself  seems  never  to  have  claimed 
that  it  was  a  great  share.  But  when  due  allowance  is 
made  for  his  entirely  unrecorded  labors  on  the  com 
mittee  of  five,3  not  more  than  two  or  three  men  can 
well  be  ranked  above  him  for  true  effectiveness  in  the 
convention ;  and  nearly  all  of  those  who  had  played 
parts  comparable  to  his  were  men  who,  when  the  work 
began,  were  better  known  than  he  was.  By  sheer  force 
of  will  and  of  sagacity,  he  had  risen  in  that  remark 
able  assembly  to  influence  and  to  leadership.  He  had 
stamped  forever  with  the  imprint  of  his  mind  and  pur 
pose  his  country's  fundamental  law.  He  had  helped  to 
shape  the  life  of  a  great  republic  for  centuries  to  come. 
The  convention's  rule  of  secrecy  was,  no  doubt,  wise  ; 
but  we  would  gladly  know  more  of  these  men's  thoughts 
and  feelings  while  they  were  about  their  epoch-making 
business.  When  it  was  all  finished,  Washington,  as 

1  Stiles's   "Literary   Diary,"   III,   279.     See  also   J.   F.   Jameson,   in 
Annual  Report  of  American  Historical  Association,  1902,  I,  160. 

2  Jeremiah  Evarts's  "  Sherman,"  in  Sanderson's  "  Lives  of  the  Signers," 

11,44- 

8  It  is  a  reasonable  inference  from  the  only  utterance  that  we  have  of 
Ellsworth  about  his  work  in  the  convention  that  he  thought  this  com 
mittee  service  the  most  important  part  of  it.  See  post,  pp.  169-170. 


THE   GREAT   CONVENTION  169 

he  tells  us  in  his  diary,  "retired  to  meditate  upon  the 
momentous  work  which  had  been  executed."  Only 
George  Mason  ever  put  into  words  what  it  meant  to 
be  a  member  of  that  illustrious  company.  "  For  my 
own  part,"  he  wrote  to  his  son,  "  I  never  before  felt 
myself  in  such  a  situation,  and  declare  I  would  not, 
upon  pecuniary  motives,  serve  in  this  convention  for 
a  thousand  pounds  per  day.  The  revolt  from  Great 
Britain  and  the  formation  of  our  new  government  at 
that  time  were  nothing  compared  with  the  great  busi 
ness  now  before  us.  There  was  then  a  certain  degree 
of  enthusiasm  which  inspired  and  supported  the  mind ; 
but  to  view  through  the  calm,  sedate  medium  of  reason 
the  influence  which  the  establishment  now  proposed 
may  have  upon  the  happiness  or  misery  of  millions  yet 
unborn  is  an  object  of  such  magnitude  as  absorbs,  and 
in  a  measure  suspends,  the  operations  of  the  human 
understanding."1  Ellsworth,  as  silent  in  statesman 
ship  as  ever  any  captain  was  in  war,  has  left  not  a 
single  self-revealing  word  about  his  own  share  in  this 
immense  experience.  Even  of  his  impressions  of  his 
fellow-delegates  we  know  nothing.  The  only  exception 
is  a  remark  he  once  made  to  his  son,  Oliver  Ellsworth, 
Jr.,  in  a  manuscript  from  whose  hand  this  entry  occurs : 
"  One  day,  upon  my  reading  a  paper  to  him  (in  his 
illness),  containing  an  eulogium  upon  the  late  Gen. 
Washington,  which  among  other  things  ascribed  to 
him  the  founding  of  the  American  Government,  .  .  . 
he  (Judge  E.)  objected,  saying  that  President  Wash 
ington's  influence  while  in  the  convention  was  not 
very  great;  at  least  not  much  as  to  the  forming  of 
the  present  Constitution  of  the  United  States  in  1787. 

1  Miss  Rowland's  "Mason,"  II,  128. 


170  OLIVER   ELLSWORTH 

Judge  E.  said  that  he  himself  was  one  of  the  five  who 
drew  up  that  Constitution." 

It  remained  to  get  the  instrument  ratified.  Whether 
the  necessary  nine  states  could  be  brought  into  line 
for  it  was  very  doubtful,  and  nowhere  was  the  outlook 
darker  than  in  New  York,  Massachusetts,  and  Rhode 
Island,  the  three  next-door  neighbors  of  Connecticut. 
But  in  Connecticut,  though  there  was  serious  opposition, 
the  friends  of  the  new  government  did  not,  it  appears, 
need  to  make  a  very  strenuous  exertion.  The  work  of 
Ellsworth  and  Sherman  at  Philadelphia  had  paved  the 
way  for  victory  with  the  people.  When  Sherman  came 
home,  they  two  sent  from  New  London  to  Governor 
Huntington  a  copy  of  the  Constitution  and  in  a  brief 
and  matter-of-fact  letter  l  enumerated  the  chief  differ 
ences  between  the  proposed  new  system  and  fhe  gov 
ernment  under  the  Articles.  Calling  attention  to  the 
ways  in  which  state-rights  were  guarded,  they  pointed 
out,  what  the  tenth  amendment  afterward  formally  de 
clared,  that  the  new  government,  like  the  old,  was  to  be 
a  government  of  strictly  defined  powers.  "  The  particu 
lar  States,"  they  phrased  it,  "  retain  their  sovereignty 
in  all  other  matters."  2  They  summarized  the  whole 
proposal  thus :  "  The  convention  endeavored  to  pro 
vide  for  the  energy  of  government  on  the  one  hand 
and  suitable  checks  on  the  other  hand,  to  secure  the 
rights  of  the  particular  states,  and  the  liberties  and 

1  Elliot's  "Debates,"  I,  491-492  ;  BoutelPs  "  Sherman,"  168-170. 

2  It  is  interesting  to  compare  the  ways  in  which  different  state-rights 
men  estimated  the  extent  of  the  concessions  that  had  been  made  to  the 
national  principle.     See,  for  instance,  Luther  Martin's  speech  before  the 
Maryland  legislature,  denouncing  the  Constitution,  and   Patrick  Henry's 
speeches  before  the  Virginia  convention,  and  also  in  1798,  when,  the  Con 
stitution  being  the  law  of  the  land,  he  could  find  no  basis  in  reason  or  in 


THE   GREAT   CONVENTION  171 

properties  of  the  citizens.  We  wish  it  may  meet 
the  approbation  of  the  several  states,  and  be  a  means 
of  securing  their  rights,  and  lengthening  out  their 
tranquillity." 

The  convention  to  reject  or  ratify  met  at  Hartford 
in  January,  1788.  In  the  meantime,  Sherman  had 
been  more  conspicuous  than  Ellsworth  in  advocating 
the  Constitution ;  but  it  was  Ellsworth  who  now,  at 
the  opening  of  the  convention,  rose  first  to  explain 
and  defend  it.  In  this  particular  assembly  the  leader 
ship  was  clearly  his.1  An  eye-witness  wrote :  "  Mr. 
Ellsworth  was  a  complete  master  of  the  subject.  He 
was  armed  at  all  points.  He  took  a  very  active  part  in 
defending  the  Constitution.  Scarcely  a  single  objec 
tion  was  made  but  what  he  answered.  His  energetic 
reasoning  bore  down  all  before  it."  :  But  once  again 
incomplete  and  imperfect  reporting  denies  us  the 
privilege  of  observing  for  ourselves  Ellsworth's  powers 
in  debate.  Even  the  most  expert  stenographer  might 
have  been  occasionally  baffled  by  his  extraordinarily 
vehement  and  rapid  elocution.  Only  two  of  his 
speeches  are  preserved  at  all,  and  when  the  first  was 
printed  in  the  Connecticut  Courant  he  himself  wrote 


honor  for  the  claim  of  sovereignty  for  the  states.  On  the  other  hand,  Wil 
son,  in  the  Pennsylvania  convention,  emphasized  the  national  character  of 
the  instrument  in  a  way  that  contrasts  strongly  with  his  own  bitter  speeches 
against  the  federal  plan  in  the  convention.  Sherman  and  Ellsworth 
appear  once  more  to  have  found  the  right  and  reasonable  middle  ground. 

1  Jackson  Ms.     For  this  particular  part  of  Ellsworth's  career,  Jackson's 
narrative  is  excellent,  though  Wood's  is  somewhat  fuller. 

2  Letter  of  Perkins  to  Simeon  Baldwin.     In  a  contemporary  published 
account,  "his  energetic  reasoning"  appears,  by  contrast  with  "the  learn 
ing  and  eloquence  of  a  Johnson  "  and  "  the  genuine  good  sense  and  dis 
cernment  of  a  Sherman,"  as  "the  Demosthenian  energy  of  an  Ellsworth." 
Wood  Ms.;  Flanders,  156. 


172  OLIVER   ELLSWORTH 

to  the  editor  that  the  report  was  incorrect.1  Yet  these 
two  speeches  are  the  best  material  we  have  for  an 
estimate  of  his  oratory.2 

The  first,  his  opening  speech,  is  mainly  given  to  a 
plain  and  forcible  arrayal  of  the  reasons  for  a  stronger 
union.  It  was  necessary,  he  argued,  for  safety;  di 
vided,  the  American  states  would  be,  like  any  other 
loose  collection  of  small  powers,  the  easy  prey  of  for 
eign  intrigue  and  of  foreign  arms.  It  was  necessary 
for  economy ;  a  competent  central  government  could 
serve  the  common  interests  at  far  less  cost  than  many 
separate  establishments.  It  was  necessary  for  peace 
among  the  states  themselves.  It  was  necessary  for 
"  commutative  justice."  Was  not  Connecticut,  under 
the  existing  system,  already  a  tributary  to  her  rapa 
cious  neighbors  ?  Would  she  not  thus  be  "  like  Issachar 
of  old,  a  strong  ass  crouching  down  between  two 
burdens  "  ?  It  was  necessary  because  there  must  be 
greater  energy  in  government ;  with  merely  advisory 
powers,  Congress  could  not  do  the  work  that  was 
expected  of  it.  Did  Connecticut  need  to  be  told  that 

1  MESSRS.   HUDSON  AND  GOODWIN  :    The  few  cursory  observations 
made  by  me  at  the  opening  of  the  convention  were  not  designed  for  a 
newspaper ;  and  what  you  have  published  as  the  substance  of  them,  from 
some  person's  minutes,  I  suppose,  is  less  proper  for  me  than  the  observa 
tions  themselves  were.     It  is  particularly  erroneous  with  regard  to  some  of 
the  historic  facts  alluded  to,  which  are  stated  in  a  manner  which  neither 
the  observations  nor  history  will  justify :  the  deviations  do  not  go  to  cir 
cumstances  very  material  to  the  argument  itself. 

I  am,  Gentlemen,  yours,  &c. 

OLIVER  ELLSWORTH. 
Jan.  10,  1788. 

Connecticut  Courant,  Jan.  16,  1788. 

2  Both  are  given  in  Frank  Moore's  "  American  Eloquence,"  I,  404-409, 
and    in    Elliot's   "Debates,"  II,  185-197.      Flanders,  144-156,  gives  the 
bulk  of  both,  but  not  the  whole  of  either. 


THE   GREAT   CONVENTION  173 

the  states  could  not  be  trusted  to  fulfil  their  mutual 
obligations  without  compulsion  or  restraint?  Was 
there  not,  in  a  little  state  close  by,  "  injustice  too  bare 
faced  for  Eastern  despotism  "  —  "a  spirit  that  would 
make  a  Tophet  of  the  universe  "  ?  True,  we  had  once 
done  well  without  any  union.  But  that  was  under 
different  conditions.  The  British  government  dis 
charged  for  us  then  functions  that  now  could  only  be 
discharged  by  a  strong  central  government  of  our  own. 
Other  confederacies  had  found  it  wise  to  use  coercion. 
But  why  talk  in  such  a  general  way,  when  all  men 
knew  that  from  want  of  energy  in  Congress  we  had 
fallen  into  injustice  toward  each  other,  into  deceit  and 
bankruptcy,  into  a  shameful  inability  to  perform  our 
treaties  with  foreign  nations?  Recurring  once  again 
to  the  tribute  Connecticut  was  paying  to  New  York 
and  Massachusetts,  he  asked,  "  If  this  is  done  when 
we  have  the  shadow  of  a  National  Government,  what 
shall  we  not  suffer  when  even  the  shadow  is  gone  ? " 
And  with  question  after  question  he  laid  barer  and 
barer  the  utter  hopelessness  of  the  old  system.  "  If 
we  go  on  as  we  have  done,  what  is  to  become  of  the 
foreign  debt?  Will  foreign  nations  forgive  us  this 
debt  because  we  neglect  to  pay  ?  or  will  they  levy  by 
reprisals,  as  the  law  of  nations  authorizes  them  ?  Will 
our  weakness  induce  Spain  to  relinquish  the  exclusive 
navigation  of  the  Mississippi,  or  the  territory  which 
she  claims  on  the  East  side  of  that  river?  Will  our 
weakness  induce  the  British  to  give  up  the  Northern 
posts  ?  If  a  war  breaks  out,  and  our  situation  invites 
our  enemies  to  make  war,  how  are  we  to  defend 
ourselves  ?  Has  Government  the  means  to  enlist  a 
man,  or  buy  an  ox  ?  Or  shall  we  rally  the  remainder 


i;4  OLIVER   ELLSWORTH 

of  our  old  army  ?  The  European  nations,  I  believe  to  be 
not  friendly  to  us.  They  were  pleased  to  see  us  dis 
connected  from  Great  Britain ;  they  are  pleased  to  see 
us  disunited  among  ourselves.  If  we  continue  so,  how 
easy  it  is  for  them  to  portion  us  out  among  them, 
as  they  did  the  Kingdom  of  Poland !  But,  supposing 
this  is  not  done,  if  we  suffer  the  Union  to  expire,  the 
least  that  may  be  expected  is,  that  the  European 
powers  will  form  alliances,  some  with  one  State  and 
some  with  another,  and  play  the  States  off  one  against 
another,  and  that  we  shall  be  involved  in  all  the 
labyrinths  of  European  politics.  But  I  do  not  wish 
to  continue  the  painful  recital ;  enough  has  been  said 
to  show  that  a  power  in  the  General  Government  to 
enforce  the  decrees  of  the  Union  is  absolutely  nec 
essary." 

There  was,  however,  a  quite  respectable  opposition 
in  the  convention,  led  by  Colonel  Wadsworth.  It 
represented  mainly  the  most  decidedly  democratic 
elements  of  the  population  of  the  state,  and  it  quickly 
fastened  on  the  clause  conveying  and  defining  the 
power  of  the  new  Congress  to  levy  taxes.  Of  all  the 
strictures  on  the  Constitution,  the  objections  to  that 
clause  seemed,  both  to  its  opponents  and  to  its  sup 
porters  in  Connecticut,  much  the  most  formidable. 
In  the  second  of  his  reported  speeches,  Ellsworth 
undertook  to  answer  them.  This  speech,  given  as  it 
was  in  the  course  of  a  general  debate,  is  perhaps  the 
best  of  all  his  utterances  to  represent  him  in  his  rela 
tion  to  the  founding  of  the  government.1  Pierpont 
Edwards,  a  member  of  the  convention,  probably  had  it 
especially  in  mind  when  he  afterward  tried  to  describe 

1  See  Appendix  B. 


THE    GREAT   CONVENTION  175 

the  effect  of  Ellsworth's  oratory.  He  himself,  it  ap 
pears,  had  made  a  speech  before  Ellsworth  rose,  and 
put  his  best  into  it ;  but  when  Ellsworth  had  finished 
he  felt  "like  a  lightning  bug  in  broad  daylight."1 
And  it  is  hard  in  fact  to  overpraise  Ellsworth's 
luminous  exposition  of  the  new  relation  between  the 
states  and  the  Union,  between  the  Union  and  the 
individual  citizen,  between  the  national  and  the  state 
judiciaries.  In  the  most  famous  of  the  countless  later 
discussions  of  these  topics,  his  words  were  quoted  by 
the  greatest  of  all  forensic  defenders  and  expounders 
of  the  Constitution.  In  the  course  of  the  long  debate 
of  1833  over  nullification,  Daniel  Webster,  replying  to 
Calhoun,  praised  Connecticut  as  "  that  State  so  small 
in  territory,  but  so  distinguished  for  learning  and 
talent,"  and  read  to  the  Senate  extracts  from  the 
speeches  made  in  her  convention  by  Johnson  and 
Ellsworth  —  "a  gentleman,  sir,  who  has  left  behind 
him,  on  the  records  of  the  government  of  his  country, 
proofs  of  the  clearest  intelligence,  and  of  the  utmost 
purity  and  integrity  of  character." 2  Webster  is  said, 
indeed,  to  have  paid  an  even  higher  tribute  to  the 
Connecticut  statesman.  One  day,  about  the  time  of 
the  reply  to  Hayne  or  the  later  battle  with  Calhoun, 
Ellsworth's  son,  then  a  member  of  Congress,  went  to 
him  and  thanked  him  for  defending  the  Constitution 
against  the  nullifiers.  "Where  do  you  think,"  an 
swered  Webster,  "  I  got  my  ideas  on  the  subject  ? 
Among  the  most  important  sources  of  my  knowledge 
have  been  the  two  speeches  of  your  father  before  the 
Connecticut  Convention.  I  value  them  so  highly  that 
when  I  met  with  them  several  years  ago  in  a  book 

*  Wood  Ms.  2  Webster's  Works,  III,  485-486. 


176  OLIVER   ELLSWORTH 

which  I  could  not  purchase  I  had  them  copied  out  in 
manuscript  and  keep  them  to  this  day  among  my 
papers." l  No  one  has  claimed  for  Ellsworth  the  first 
place  among  the  founders  of  the  government ;  but  he 
enjoys  among  them  one  unique  distinction.  Calhoun 
and  Webster,  though  they  were  the  champions  of  en 
tirely  contrary  views  of  the  Constitution,  agreed  upon 
the  soundness  of  his.  Alone  of  all  that  famous  com 
pany,  he  seems  to  have  won  the  equal  homage  of 
those  opposed  intellects. 

1  Jackson  Ms.  Jackson  was  the  son-in-law  of  Hon.  W.  W.  Ellsworth 
(M.C.,  1827-1834),  and  tells  us  in  his  diary  that  he  got  many  of  his  facts 
and  incidents  from  the  lips  of  his  father-in-law. 


CHAPTER  V 

THE   SENATE 

ELLSWORTH'S  quality  was  by  this  time  known  to  the 
foremost  men  in  the  country ;  and  to  them  as  to  us  it 
must  have  been  evident  chiefly  from  what  he  had  done 
and  helped  to  do.  We  may  feel,  therefore,  reasonably 
sure  of  the  kind  of  esteem  in  which  they  held  him.  A 
phrase  which  is  often  employed  nowadays,  in  business, 
war,  politics,  athletics,  conveys  very  well  the  judgment 
of  him  which  his  work  compels  from  any  careful  student 
of  his  career,  and  must  have  compelled  also  from  those 
who  knew  him  in  the  flesh.  He  was  "  a  good  man," 
—  "a  good  man "  at  the  bar  and  at  the  pay  table,  " a 
good  man  "  in  Congress,  "a  good  man  "  on  the  bench, 
"  a  good  man "  when  it  came  to  blocking  out  and 
rounding  into  shape  a  constitution  of  government. 
He  should  serve  even  better  than  if  he  were  a  man  of 
genius  for  an  encouraging  example  of  how  much,  with 
will  and  conscience,  the  citizen  of  a  free  country  can 
do  with  his  life. 

When  it  was  known  that  the  new  system  would  cer 
tainly  be  tried,  Connecticut  chose  him  and  Johnson  to 
be  her  first  two  senators,  and  he  thus  became  a  mem 
ber  of  the  assembly  whose  form  and  character  he  had 
done  so  much  to  determine.  Sherman  was  at  first 
sent  to  the  House  of  Representatives,  but  in  two  years 
Johnson  retired  to  become  the  president  of  King's 
College,  whose  name  had  been  changed  to  Columbia, 
N  177 


178  OLIVER   ELLSWORTH 

and  then  for  a  single  session  Sherman  was  once  again 
Ellsworth's  colleague.  But  in  the  recess  of  1793  the 
old  patriot  died.1  It  is  conjecturable  that  his  lack  of  a 
collegiate  training  may  have  been  one  of  the  reasons 
why  he  was  not  in  the  first  instance  elected  to  the 
Senate. 

Ellsworth  and  Johnson  were  two  of  the  eight  senators 
who  were  present  in  New  York  on  March  4,  1789, 
the  place  and  date  appointed  for  the  opening  of  the 
new  Congress.2  Neither  house,  however,  had  a  quo 
rum.  Fisher  Ames,  the  young  Massachusetts  orator, 
the  successful  rival  of  Samuel  Adams  in  the  Boston 
Congress  district,  had  come  to  New  York  eager  for 
acquaintance  with  the  famous  leaders  of  other  states, 
and  in  his  impatience  he  wrote  back  home  that  the 
new  government  was  like  to  be  forgotten  before  it  was 
born.  After  waiting  a  week,  the  senators  who  had 
arrived  sent  a  circular  letter  to  their  tardy  fellows; 
but  at  the  end  of  a  fortnight  there  was  still  no  quo 
rum,  and  another  more  urgent  call  was  despatched. 
It  was  not  till  April  6  that  Richard  Henry  Lee  of 
Virginia,  the  twelfth  senator,  appeared,  and  a  messen 
ger  informed  the  House  of  Representatives,  which 
had  organized  on  April  i,  that  the  Senate  was  ready 
to  proceed  to  business.  The  first  business  was  to 
count  the  ballots  for  President  and  Vice-President, 
and  inform  Washington  and  Adams  of  their  election. 

1  At  the  opening  of  Congress  in  December,  1793,  Stephen  Mix  Mitchell 
took  Sherman's  place.     Ellsworth's  last  colleague  (1795-1796)  was  Jona 
than  Trumbull,  a  son  of  the  Revolutionary  governor. 

2  Senate  Journals,  1st  Sess.,  p.  i.     For  Senate  proceedings  I  have  com 
pared  the  official  journals  in  the  original  published  form  with  Gales  and 
Seaton's   "Annals    of   Congress"  and    Benton's    "Abridgment    of   the 
Debates  of  Congress." 


THE   SENATE  179 

It  was  the  end  of  April  before  Washington  was  inau 
gurated  ;  but  meanwhile  the  two  houses  had  gone 
ahead  with  legislation  necessary  to  set  the  wheels  of 
government  in  motion.  The  House  of  Representa 
tives  took  up  first  the  question  of  revenue,  and  pro 
ceeded  to  devise  a  tariff  and  a  bill  for  tonnage  duties. 
The  Senate  led  the  way  in  framing  rules  for  the  legis 
lature  and  making  plans  for  the  other  departments. 
In  this,  no  other  senator  was  more  active  than  Ells 
worth. 

He  was  doubtless  more  at  home  and  at  ease  with 
his  fellows  in  the  Senate  than  he  had  ever  been  at  his 
entrance  into  any  other  legislative  body.  The  number 
was  so  small  that  on  a  chilly  day  they  all  left  their 
seats  and  gathered  near  the  fire.1  When  he  looked 
about  him,  there  were  few  strange  faces.  Of  the 
twenty-two  members  and  members-elect,  a  majoritywere 
men  whom  he  had  already  encountered  in  the  old  Con 
gress  or  the  Constitutional  Convention,  and  there  was  no 
one  among  them  of  whom  he  needed  to  stand  in  awe. 
Certainly  no  one  from  New  England  outclassed  him 
or  his  colleague.  Of  the  men  from  the  Middle  states 
and  the  South,  Morris  and  Lee  were  probably  the 
most  influential.  Madison,  defeated  by  the  state- 
rights  party  in  the  Virginia  legislature,  had  with  diffi 
culty  secured  a  seat  in  the  House  of  Representatives. 
Hamilton  was  not  in  Congress  at  all.  New  York,  in 
fact,  had  not  yet  chosen  her  senators.  When  she  did 
choose,  one  of  them  was  Rufus  King,  who  had  recently 
moved  from  Massachusetts  to  New  York  City.  Nor 
did  any  of  the  new  men  reveal  a  commanding  fitness 
for  leadership.  To  one  of  these,  however,  William 

1  The  Journal  of  William  Maclay  (ed.  by  Edgar  S.  Maclay,  1890),  21. 


l8o  OLIVER   ELLSWORTH 

Maclay,  Morris's  colleague  from  Pennsylvania,  we  are 
indebted  for  our  most  intimate  view  of  the  Senate  and 
of  Ellsworth  during  the  first  two  sessions.1  It  is  not 
a  very  charitable  view,  nor  is  it  unbiassed,  for  Maclay 
was  a  democrat  of  the  suspicious  kind,  distrusting  every 
thing  that  savored  either  of  authority  or  intrigue.  He 
judged  men's  motives  severely,  for  the  most  part,  and 
he  seems  to  have  had  a  strong  dislike  for  Yankees  — 
stronger  even  than  was  common  in  the  Middle  and 
Southern  states.  Many  of  his  criticisms  of  men  and 
measures  are  decidedly  carping,  and  nearly  all  his 
comments  and  characterizations  must  be  taken  with  a 
grain  of  salt.  But  one  feels,  nevertheless,  in  reading 
his  diary,  that  though  narrow  he  was  honest;  and 
sometimes  his  accounts  of  actual  happenings  yield 
peculiarly  vivid  and  photographic  glimpses  of  the  way 
men  looked  and  acted,  and  the  way  things  were  done, 
while  the  first  Congress  was  making  precedents  for  its 
successors,  and  the  first  President  was  setting  a  stand 
ard  to  which  none  of  his  successors  has  ever  quite 
come  up.  At  times,  Maclay  was  deeply  grieved  even 
at  Washington's  behavior,  and  there  was  scarcely  one 
of  his  fellow-senators  whose  course  did  not  sooner  or 
later  plunge  him  into  the  gloomiest  reflections  concern 
ing  human  depravity.  What  he  tells  us  of  their  frail 
ties  and  perversities  ought  not,  however,  to  be  entirely 
disregarded.  Much  of  it  is  doubtless  true,  and  there 
is  a  certain  comfort  in  knowing  that  these  founders 
and  first  administrators  of  the  government,  so  far  from 
being  faultless,  were  perhaps  reasonably  like  the  public 
men  of  our  own  time ;  for  we  see  now  that  their  work 

1  Maclay's  Journal,  as  above.     The  edition  of  1890  is  much  fuller  than 
the  first  edition,  published  ten  years  earlier. 


OLIVER   ELLSWORTH. 
From  a  miniature  by  Trumbull,  in  the  possession  of  Yale  University. 


THE   SENATE  l8l 

was  on  the  whole  good.  Maclay 's  diary  is  priceless, 
for  during  these  early  sessions  the  Senate's  doors  were 
closed  and  the  debates  unreported,  and  the  journals 
are  as  meagre  as  those  of  the  old  Congress  of  the 
Confederation.  Ellsworth  was  one  of  the  last  to  favor 
public  sessions.  The  motion  to  open  the  doors,  often 
proposed,  was  not  finally  passed  until  February,  1 794.* 
It  took  effect  at  the  next  session,  but  the  debates  did 
not  actually  begin  to  be  reported  and  published  until 
Ellsworth's  service  was  ended.  Maclay,  though  he 
spared  the  Connecticut  statesman  no  more  than  any 
other  of  the  leaders,  has  rendered,  nevertheless,  a  valu 
able  service  to  his  memory,  for  the  diary  makes  it 
plain  that  from  the  first  he  was  a  very  real  leader 
indeed. 

So  much,  perhaps,  might  be  inferred  even  from  the 
journals.  It  was  Ellsworth  who,  the  day  a  quorum 
appeared,  went  to  inform  the  House  of  Representa 
tives  that  the  Senate  was  ready  to  count  the  votes 
for  President  and  Vice-President.  The  next  day,  the 
7th,  the  first  vote  was,  "  That  Mr.  Ellsworth,  Mr. 
Paterson,  Mr.  Maclay,  Mr.  Strong,  Mr.  Lee,  Mr.  Bas- 
sett,  Mr.  Few,  Mr.  Wingate,  be  a  committee  to  bring 
in  a  bill  for  organizing  the  Judiciary  of  the  United 
States " ;  and  immediately  afterward  Ellsworth  was 
set  at  the  head  of  another  committee  to  prepare  rules 
for  the  Senate  and  for  conferences  between  the  two 
houses,  and  to  take  thought  also  on  the  subject  of 
chaplains.2  During  the  next  few  weeks  he  was  much 
engaged  with  questions  of  form  and  procedure.  He 
helped  prepare  the  certificates  of  election  which  were 
sent  to  Washington  and  Adams,  and  waited  on  Adams 

1  Senate  Journals,  3d  Cong.,  ist  Sess.,  55-56.  *  Ibid.,  10. 


1 82  OLIVER   ELLSWORTH 

to  consult  about  his  inauguration.  He  reported  the 
first  set  of  Senate  rules,  and  considered  a  plan  for 
printing  the  journals.  He  headed  the  committee 
which  divided  the  senators  into  classes  with  different 
terms  of  service.  He  served  on  the  committee  on  titles 
for  the  President  and  Vice-President,  and  frequently 
discussed  that  much-vexed  subject1  Historians  of  the 
period  have  not  failed  to  exhibit  the  comical  aspect  of 
the  Senate's  troubled  concern  over  matters  of  etiquette, 
and  the  House  of  Representatives  won  much  favor 
with  the  populace  by  its  democratic  stand  against  all 
titles.  John  Adams  was  so  keen  about  them  that  he 
disgusted  Maclay  and  other  of  the  senators,  and  Mac- 
lay  set  down  Ellsworth  as  one  of  those  who  humored 
and  supported  him.2  But  it  is  only  just  to  remember 
that  these  men  felt  that  they  were  making  at  every 
turn  precedents  which  might  hold  for  many  years. 
The  new  government  was  a  very  bold  and  radical 
departure,  and  they  wished  to  neglect  nothing  that 
might  help  to  link  it  with  the  past  and  to  give  it  dig- 

1  Journals,  5,  10,  13,  19,  26,  31,  32,  34,  35  ;  Maclay,  3,  22-24,  29,  33,  35, 

37,  39- 

2  One  day,  shortly  before  the  inauguration  of  Washington,  Adams  made 
a  fairly  piteous  appeal  to  the  Senate  to  tell  him  how  he  ought  to  behave  on 
that  occasion  —  whether  as  Vice-President,  as  President  of  the  Senate,  or 
as  President  of  the  United  States  in  posse.     "  I  wish  gentlemen  to  think 
what  I  shall  be,"  he  ended,  in  much  distress.     Maclay  says  that  in  the 
solemn  silence  which  followed  the  profane  muscles  of  his  own  face  were  in 
tune  for  laughter. 

"  Ellsworth,  however,  thumbed  over  the  sheet  constitution  and  turned  it 
for  some  time.  At  length  he  rose  and  addressed  the  chair  with  the  utmost 
gravity :  — 

" *  Mr.  President,  I  have  looked  over  the  Constitution  (pause),  and  I 
find,  sir,  it  is  evident  and  clear,  sir,  that  wherever  the  Senate  is  to  be, 
there,  sir,  you  must  be  at  the  head  of  them.  But  further,  sir  (here  he 
looked  aghast,  as  if  some  tremendous  gulf  had  yawned  before  him),  I  shall 
not  pretend  to  say.'  "  Maclay's  Journal,  2-3. 


THE   SENATE  183 

nity.  In  this  regard,  Washington  was  as  gravely  cau 
tious  as  any  one.  Ellsworth's  committee  would  have 
called  the  President  "  his  Highness,  the  President  of 
the  United  States,  and  Protector  of  their  Liberties," 
and  the  House  of  Representatives  threw  out  the 
proposal  with  successful  ridicule.  But  at  this  time 
most  Englishmen  still  looked  back  with  something 
like  horror  to  the  years  when  England  had  been  so 
radically  republican  as  to  substitute  a  Lord  Protec 
tor  for  a  King ;  and  America  had  broken  away  from 
England  to  be  independent,  not  to  set  up  a  democ 
racy.  Neither  had  the  constitutional  movement  that 
was  now  being  consummated  aimed  at  democracy,  but 
rather  at  strength,  stability,  efficiency.  There  were 
plenty  of  men,  and  some  of  them  important  characters 
in  the  government,  —  as  Jefferson,  on  his  return  from 
France,  soon  remarked,  —  who  augured  nothing  but  ill 
from  the  democracy  already  worked  into  the  system. 
Hamilton  and  Adams,  in  different  ways  and  different 
degrees,  were  both  exponents  of  that  view.1  But 
Maclay  was  probably  wrong  in  supposing  Ellsworth 
to  be  of  their  party  in  the  sense  that  he  leaned  toward 
monarchy,  as  Hamilton  certainly  did.2  Ellsworth  was, 
beyond  question,  zealous  and  resolute  in  all  things 
that  tended  to  make  the  new  government  strong  and 
respectable.  He  did  not  share  at  all  the  apparent 
reaction  from  the  national  impulse  which  soon  carried 
over  Madison,  the  house  leader,  from  Hamilton's  side 

1  See  a  curious  note  by  Adams  to  his  own  Davila  essays,  concerning 
a  resolution  in  praise  of  the  Constitution  offered  by  Ellsworth.     "  I  was 
obliged  to  put  the  question  and  it  stands  upon  record.   .  .  .     John  Adams 
alone  detested  it  (i.e.  the  Constitution)."     Adams's  Works,  VI,  323. 

2  See   Maclay's  Journal,  23,  112,  114,  for  speeches  of  Ellsworth  that 
Maclay  particularly  disrelished  on  this  account. 


1 84  OLIVER   ELLSWORTH 

to  Jefferson's.  On  the  contrary,  from  this  time  to  the 
end  of  his  career,  he  remained  a  consistent  Federalist. 
When  the  French  Revolution  broke  out,  he  soon 
showed  that  he  was  not  thrilled  by  any  sympathy  with 
its  radical  ideas  and  methods.  But  in  these  conserva 
tive  opinions  he  was  never  violent  or  extreme,  and 
there  is  nothing  to  indicate  that  he  ever  lost  faith 
in  the  kind  of  democracy  he  had  always  known  in 
Connecticut.  In  this  moderation  his  career  contrasts 
very  favorably  indeed  with  that  of  his  more  partisan 
Federalist  friends,  particularly  when  they  went  out  of 
power.  There  were  doubtless  more  brilliant  minds 
than  his  in  the  government  in  its  early  days,  but 
scarcely  one  better  balanced  or  more  steadfast  and 
judicious. 

These  broad  questions  were  not,  however,  immedi 
ately  broached,  save  as  the  disputes  about  forms  and 
titles  may  have  involved  them.  There  were  too  many 
tasks  of  a  constructive  nature  that  must  at  once  be 
undertaken,  and  one  of  these,  as  fundamentally  impor 
tant  as  any,  was  peculiarly  Ellsworth's.  Hamilton 
is  not  more  clearly  responsible  for  committing  the 
government  to  permanent  policies  in  finance  than  Ells 
worth  is  for  setting  the  judiciary  in  the  course  of 
development  which  it  has  followed  ever  since. 

The  fact  that  he  was  chairman  of  the  Senate  com 
mittee  to  bring  in  a  bill  to  organize  the  courts  is  by 
no  means  the  only  evidence  that  he  was  the  respon 
sible  author  of  the  measure.  Maclay's  testimony  on 
that  point  is  abundant;  and  Maclay  was  himself  a 
member  of  the  committee.  "This  vile  bill,"  he  one 
day  observes,  "  is  a  child  of  his  (Ellsworth's),  and  he 
defends  it  with  the  care  of  a  parent,  even  with  wrath 


THE   SENATE  185 

and  anger."1  Nearly  fifty  years  later,  Madison  wrote 
to  Wood,  "  It  may  be  taken  for  certain  that  the  bill 
organizing  the  judicial  department  originated  in  his 
(Ellsworth's)  draft,  and  that  it  was  not  materially 
changed  in  its  passage  into  law."2  Madison  had  al 
ready,  several  years  earlier,  written  to  Edward  Everett, 
to  correct  an  impression  that  he  himself  was  the  au 
thor  of  the  law,  "  The  bill  originated  in  the  Senate, 
of  which  I  was  not  a  member,  and  the  task  of  prepar 
ing  it  was  understood,  justly  I  believe,  to  have  been 
performed  by  Mr.  Ellsworth  in  consultation  probably 
with  some  of  his  learned  colleagues." 3  A  few  letters 
that  passed  between  Ellsworth  and  certain  of  his  friends 
show  that  for  all  his  modesty  he  felt  himself  charged 
with  the  main  responsibility  for  the  bill.  One  of  them 
shows  also  that  as  early  as  the  end  of  April  —  that  is 
to  say,  by  the  time  Washington  was  inaugurated  — 
he  had  worked  out  the  general  scheme  of  courts 
which  the  committee  afterward  adopted.  Yet  it  was 
not  till  twelve  days  later  that  the  committee  named  a 
subcommittee  to  draft  a  bill.4  His  substantial  author- 

1  Maclay's  Journal,   91-92.      "  Ellsworth    hath   led   in   this   business, 
backed    with    Strong,   Patterson    (sic).   Read    often,    Bassett    seldom." 
Ibid.,  101. 

One  afternoon,  Morris,  Rufus  King,  and  Pierce  Butler  called  on 
Maclay.  "The  talk  was  all  about  the  judiciary.  Mr.  Morris  said  that 
he  had  followed  Ellsworth  in  everything ;  if  it  was  wrong  he  would  blame 
Ellsworth."  Ibid.,  152. 

2  "Letters  and  Other  Writings  of  Madison"  (ed.  1865),  IV,  428.    The 
letter  is  dated  Feb.  27,  1836. 

8  Ibid.,  220-221,  letter  dated  May  30,  1832.  See  also  Madison  to 
Doddridge  (June  6,  1832),  ibid.,  221-222.  Madison  was  peculiarly  care 
ful  and  accurate  on  all  such  questions  as  this  about  past  events. 

4  July  9,  1789,  Fisher  Ames  wrote  to  a  Massachusetts  correspondent: 
"The  Judiciary  is  before  the  Senate,  who  make  progress.  Their  com 
mittee  labored  upon  it  with  vast  perseverance,  and  have  taken  as  full  a 
view  of  their  subject  as  I  ever  knew  a  committee  take.  Mr.  Strong,  Mr. 


1 86  OLIVER   ELLSWORTH 

ship  of  it,  asserted  by  his  biographers,  is  conceded  by 
historians  of  the  period,  and  indeed  does  not  seem  to 
be  questioned  by  any  one.1  He  had,  of  course,  a  great 
interest  in  the  subject,  and  his  experience  on  the  old  com 
mittee  of  appeals,  in  the  great  convention,  and  on  the 
bench,  gave  him  an  exceptional  equipment  for  the  work. 

No  complete  history  of  the  bill  can  now  be  written, 
but  there  is  enough  in  the  journals  of  the  two  houses 
and  in  the  debates  of  the  House  of  Representatives 
to  sustain  Madison's  impression  that  it  went  through 
without  any  radical  changes.  It  was  introduced  on 
June  12  by  Lee;2  but  Lee  can  hardly  have  had  much 
share  in  framing  it,  for  he  soon  tried  to  amend  it  radi 
cally,  and  he  was  one  of  the  six  who  voted  against  it 
when  it  passed  the  Senate.3  His  amendment  expressed 
the  strongest  opposition  which  the  measure  encoun 
tered,  for  it  would  have  prevented  the  setting  up  of 
any  inferior  federal  tribunals  whatever,  except  for 
admiralty  and  maritime  cases. 

Whether  to  set  up  a  complete  system  of  federal 
courts  or  to  assume  for  the  federal  establishment,  in 

Ellsworth,  and  Mr.  Paterson,  in  particular,  have  their  full  share  of  this 
merit."  Works,  I,  64. 

1  Flanders  stated  (1857)  that  the  original  draft  of  the   bill,  in   Ells 
worth's  handwriting,  was  "  still  preserved  in  the  archives  of  the  Govern 
ment,"  and   that   "it  passed  with   but  little  alteration  from  the  original 
draft."     But  he  gives  no  reference  and  does  not  state  that  he  himself  had 
seen  the  document.      Van  Santvoord  (1854)  supposes  that  Paterson,  an 
able  lawyer,  had  a  share  in  the  work,  and  adds  :  "  It  is  said  that  he  (Ells 
worth)  was  assisted  also  by  the  valuable  aid  of  his  colleague,  Mr.  Johnson. 
To  Ellsworth,  however,  was  assigned  the  chief  share  of  the  labor,  and  the 
draft  of  the   bill  was  undoubtedly  from  his  pen."     Flanders,  159;  Van 
Santvoord,  238.     See  also  Schouler's  "  History  of  the  United  States,"  I, 
96 ;  Carson,  "  History  of  the  Supreme  Court,"  I,  129,  186 ;  Mr.  Justice  Field, 
in  Ex parte  Virginia,  100  United  States  Reports,  313. 

2  Senate  Journals,  ist  Sess.,  50.  3  Ibid.,  64. 


THE   SENATE  187 

all  but  a  few  categories  of  cases,  a  merely  appellate 
jurisdiction,  was  probably  the  first  question  the  com 
mittee  had  had  to  consider.  To  understand  the  pre 
cise  nature  of  their  task,  little  is  necessary  beyond  a 
careful  reading  of  the  brief  third  article  of  the  Consti 
tution.1  For  models  and  object  lessons  they  had  of 
course  the  judicial  establishments  of  England  and  the 

1  ARTICLE  III 

Section  i.  The  judicial  power  of  the  United  States  shall  be  vested  in 
one  Supreme  Court,  and  in  such  inferior  courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish.  The  judges,  both  of  the  Supreme  and 
inferior  courts,  shall  hold  their  offices  during  good  behavior,  and  shall,  at 
stated  times,  receive  for  their  services  a  compensation  which  shall  not  be 
diminished  during  their  continuance  in  office. 

Section  2.  The  judicial  power  shall  extend  to  all  cases,  in  law  and 
equity,  arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  authority ;  —  to  all 
cases  affecting  ambassadors,  other  public  ministers,  and  consuls; — to  all 
cases  of  admiralty  and  maritime  jurisdiction ;  — to  all  controversies  to  which 
the  United  States  shall  be  a  party ;  —  to  controversies  between  two  or  more 
States  ;  —  between  a  State  and  citizens  of  another  State  ;  —  between  citizens 
of  different  States ;  —  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State,  or  the  citizens  thereof, 
and  foreign  states,  citizens  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers  and  consuls, 
and  those  in  which  a  State  shall  be  party,  the  Supreme  Court  shall  have 
original  jurisdiction.  In  all  other  cases  before  mentioned,  the  Supreme 
Court  shall  have  appellate  jurisdiction,  both  as  to  law  and  fact,  with  such 
exceptions  and  under  such  regulations  as  the  Congress  shall  make. 

The  trial  of  all  crimes,  except  in  case  of  impeachment,  shall  be  by  jury ; 
and  such  trial  shall  be  held  in  the  State  where  the  said  crimes  shall  have 
been  committed;  but  when  not  committed  within  any  State,  the  trial  shall 
be  at  such  place  or  places  as  the  Congress  may  by  law  have  directed. 

Section  3.  Treason  against  the  United  States  shall  consist  only  in  levy 
ing  war  against  them,  or  in  adhering  to  their  enemies,  giving  them  aid  and 
comfort. 

No  person  shall  be  convicted  of  treason  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  on  confession  in  open  court. 

The  Congress  shall  have  power  to  declare  the  punishment  of  treason, 
but  no  attainder  of  treason  shall  work  corruption  of  blood,  or  forfeiture, 
except  during  the  life  of  the  person  attained. 


1 88  OLIVER  ELLSWORTH 

several  colonies,  and  possibly  some  of  them  were  ac 
quainted  also  with  the  systems  of  continental  Europe. 
They  can  scarcely  have  failed  to  foresee  from  the  be 
ginning  that  there  would  be  jealousy  of  the  new  estab 
lishment,  since  it  would  bring  the  fresh  power  of  the 
central  government  home  to  the  people  more  intimately, 
perhaps,  than  any  other  department.  But  on  the  other 
hand  there  was  the  history  of  the  committee  of  appeals 
to  show  that  unless  the  central  government  had  effi 
cient  courts  of  its  own  it  could  not  be  sure  of  success 
fully  asserting  its  judicial  authority.  Ellsworth,  in  par 
ticular,  can  hardly  have  forgotten  the  case  of  the  sloop 
Active  and  the  still  unsatisfied  claim  of  Olmstead  and 
his  fellows.  To  the  establishment  of  inferior  courts 
with  original  jurisdiction  of  maritime  causes  there 
seems  in  fact  to  have  been  no  serious  objection  from 
any  quarter.  But  the  committee  decided  also  that 
there  must  be  inferior  federal  courts  for  all  causes 
to  which,  according  to  the  Constitution,  the  judicial 
power  of  the  central  government  extended.  There 
could  scarcely  be  a  briefer  statement  of  the  scheme 
of  courts  which  was  then  adopted  than  the  following, 
from  a  letter  written  by  Ellsworth  on  April  30  to 
Judge  Richard  Law  of  the  Connecticut  Superior 

Court:1 

"  NEW  YORK,  April  30,  1789. 

"  DEAR  SIR  :  The  following  are  outlines  of  a  judi 
ciary  system  contemplating  before  a  committee  of  the 
Senate. 

"  That  the  Supreme  Court  consist  of  six  judges,  and 
hold  two  stated  sessions  annually  at  or  near  the  seat 
of  government. 

1  Wharton's  State  Trials,  37-38. 


THE   SENATE  189 

"  That  there  be  a  District  Court  with  one  judge 
resident  in  each  State,  with  jurisdiction  in  admiralty 
cases,  smaller  offences  and  some  other  special  cases. 

"  That  the  United  States  be  divided  into  three  cir 
cuits.  That  a  court  be  holden  twice  annually  in  each 
State,  to  consist  of  two  judges  of  the  Supreme  Court 
and  the  District  Judge.  This  court  to  receive  ap 
peals  in  some  cases  from  the  District  Court,  to  try 
high  crimes,  and  have  original  jurisdiction  in  law  and 
equity,  in  controversies  between  foreigners  and  citi 
zens  and  between  citizens  of  different  states,  &c.,  where 
the  matter  in  dispute  exceeds  two  thousand  dollars.  I 
wish  to  be  favored  with  your  thoughts  on  this  impor 
tant  subject,  as  particularly  as  you  please.  Mr.  Larned 
will  be  able  to  gratify  your  curiosity  as  to  what  has  been 
done  and  is  doing  here." 

Nor  could  there  be  a  much  briefer  statement  of  the 
reasons  for  the  decision  to  set  up  inferior  tribunals 
than  the  following,1  written  early  in  August  to  the 

same  correspondent: 

"  NEW  YORK,  Aug.  4,  1789. 

"  DEAR  SIR  :  I  thank  you  for  two  letters  received 
since  my  late  return  from  Connecticut,  and  am  glad 
to  find  your  opinion  favorable  toward  the  Judiciary 
Bill,  which  has  been  the  result  of  much  deliberation  in 
the  Senate.  To  annex  to  State  Courts  jurisdictions 
which  they  had  not  before,  as  of  admiralty  cases,  and, 
perhaps,  of  offences  against  the  United  States,  would 
be  constituting  the  judges  of  them,  pro  tanto,  federal 
judges,  and  of  course  they  would  continue  such  during 
good  behavior,  and  on  fixed  salaries,  which  in  many 

1  Wharton's  State  Trials,  38. 


1 90  OLIVER   ELLSWORTH 

cases  would  illy  comport  with  their  present  tenure  of 
office.  Besides,  if  the  State  Courts,  as  such,  could 
take  cognizance  of  these  offences,  it  might  not  be 
safe  for  the  General  Government  to  put  the  trial  and 
punishment  of  them  entirely  out  of  its  own  hands. 
One  federal  judge,  at  least,  resident  in  each  State, 
appears  unavoidable ;  and  without  creating  any  more, 
or  much  enhancing  the  expense,  there  may  be  Cir 
cuit  Courts,  which  would  give  system  to  the  depart 
ment,  uniformity  to  the  proceedings,  settle  many 
cases  in  the  States  that  would  otherwise  go  to  the 
Supreme  Court,  and  provide  for  the  higher  grade  of 
offences.  Without  this  arrangement  there  must  be 
many  appeals  or  writs  of  error  from  the  Supreme 
Courts  of  the  States,  which  by  placing  them  in  a  sub 
ordinate  situation,  and  subjecting  their  decisions  to 
frequent  reversals,  would  probably  more  hurt  their 
feelings  and  their  influence,  than  to  divide  the 
ground  with  them  at  first,  and  leave  it  optional  with 
the  parties  entitled  to  federal  jurisdiction,  where  the 
causes  are  of  considerable  magnitude,  to  take  their 
remedy  in  which  line  of  courts  they  pleased.  I  con 
sider  a  proper  arrangement  of  the  Judiciary,  however 
difficult  to  establish,  among  the  best  securities  the 
Government  will  have,  and  question  much  if  any  will 
be  found  at  once  more  economical,  systematic,  and 
efficient,  than  the  one  under  consideration.  Its  fate 
in  the  House  of  Representatives  or  in  the  opinion 
of  the  public,  I  cannot  determine.  But  being  after  a 
long  investigation  satisfied  in  my  own  mind  of  its 
expediency,  I  have  not  hesitated,  nor  shall  I,  to  give 
it  the  little  support  in  my  power.  As  to  the  District 
Court  in  Connecticut,  I  should  be  well  satisfied  with 


THE   SENATE  191 

its  sitting  alternately  at  New  Haven  and  New  Lon 
don."1 

But  apart  from  the  decision  to  have  inferior  courts, 
and  the  scheme  of  districts  and  circuits,  it  was  no 
simple  business  to  carry  out  in  a  practical  fashion  the 
general  directions  of  the  Constitution.  The  longer 
one  examines  the  third  article  of  that  potent  instru 
ment,  the  more  one  admires  its  condensation,  its  com 
prehensiveness,  its  wise  elasticity.  It  is  perhaps  the 
very  best  specific  instance  of  the  founders'  wisdom 
and  foresight.  The  definition  of  the  limits  of  fed 
eral  jurisdiction  is  perfectly  clear  and  perfectly  logical, 
and  the  two  or  three  rules  concerning  the  way  it  shall 
be  exercised  leave  to  the  legislature  a  discretion  ample 
for  all  conceivable  changes  of  conditions.  But  the  bill 
cannot  have  been  an  easy  one  to  draft.  Provision 
must  be  made  for  ten  classes  of  cases,  the  jurisdictions 
of  the  Supreme,  Circuit,  and  District  courts  must  be 
carefully  delimited,  and  the  judicial  authority  of  the 
several  states  no  further  invaded  than  was  neces 
sary  to  assert  fully  the  judicial  authority  of  the 
Union.  The  device  of  concurrent  jurisdiction  and 
the  expedient  of  transferring  cases  from  one  court  to 
another  had  to  be  freely  employed  —  perhaps  more 
freely  than  ever  before  in  the  history  of  jurisprudence. 
But  it  would  again  be  difficult  to  detail  the  way  in 
which  the  various  problems  were  solved  in  fewer  or 
simpler  words  than  those  of  Ellsworth  in  the  bill  itself.2 

Had  Lee's  amendment  carried,  the  bill  would  have 

1  Among  some  Ellsworth  papers  in  the  Public  Library  of  the  city  of 
New  York  there  is  a  brief  letter  written  the  same  day  to  Pierpont  Edwards, 
telling  him  that  Judge  Law  thought  well  of  the  proposed  judiciary  system. 

2  For  the  text,  without  amendments,  see  "  Statutes  at  Large  "  (edited  by 
R.  Peters),  I,  73-93. 


1 92  OLIVER   ELLSWORTH 

lost  its  character  as  a  complete  fulfilment  of  the  con 
stitutional  mandate,  and  the  new  government  would 
have  surrendered  at  the  outset  a  great  part  of  its 
authority.  To  leave  unexercised  the  power  to  create 
inferior  tribunals  would  have  been  conceding  too  much 
to  a  destructive  anti-Federalist  sentiment.  While  the 
Constitution  was  before  the  people,  its  adversaries  had 
with  much  success  inveighed  against  it  as  threaten 
ing  to  overthrow  the  state  judiciaries.  Lee  himself, 
in  his  "  Letters  of  a  Federalist  Farmer,"  had  skilfully 
taken  that  line  of  attack.  In  this,  although  he  prob 
ably  did  not  know  it  at  the  time,  he  was  merely 
following  the  lead  of  Rutledge,  Butler,  and  others  in 
the  Constitutional  Convention.  Four  of  the  delegates 
who  would  not  sign  the  Constitution  —  Randolph, 
Mason,  Gerry,  and  Martin  —  had  mentioned  among 
their  objections  the  extensive  jurisdiction  given  to  the 
federal  courts.  Senators  who  had  served  in  the  con 
vention  were  probably  not  surprised,  the  day  the  bill 
was  introduced,  to  hear  Pierce  Butler  of  South  Caro 
lina  set  upon  it  forthwith  in  such  a  "  flaming  "  speech 
that  he  had  to  be  called  to  order  by  the  chair.1  But 
it  now  seems  perfectly  clear  that  Ellsworth  and  the 
majority  of  the  committee  were  wise  to  yield  not  at 
all  to  these  natural  but  illogical  fears.  They  were 
sustained  by  the  Senate,  for  Lee's  motion  was  voted 
down.  In  the  debate  over  it,  as  in  all  the  debates 
while  the  bill  was  on  its  passage,  Ellsworth  acted  as 
its  manager  and  principal  defender :  so  much  at  least 
we  learn  from  Maclay.  And  it  appears  that  he  was  a 
jealous  defender,  tenax  propositi,  and  none  too  gentle 
in  his  handling  of  objections  and  adversaries. 

1  Maclay's  Journal,  74. 


THE   SENATE  193 

Taken  up  in  committee  of  the  whole  on  June  22, 
the  bill  was  before  the  Senate  much  of  the  time  until 
July  17,  when  it  passed.  In  the  debate  by  clauses, 
Ellsworth  successfully  resisted  the  attempt  to  reduce 
the  number  of  judges  of  the  Supreme  Court.  "  He 
enlarged  on  the  importance  of  the  causes  that  would 
come  before  them,  of  the  dignity  it  was  necessary  to 
support,  and  the  twelve  judges  of  England  in  the 
Exchequer  chamber  were  held  up  to  view  during  the 
whole  harangue,  and  he  seemed  to  draw  conclusions 
that  twelve  were  few  enough."  1  But  Maclay's  amend 
ment  to  permit  affirmations  instead  of  oaths  carried,2 
and  so  did  another  to  change  a  clause,  not  specified, 
"where  Ellsworth  in  his  diction  had  varied  from 
the  Constitution,"  —  notwithstanding  that  Ellsworth 
"  kindled,  as  he  always  does  when  it  (the  bill)  is  med 
dled  with."3  On  the  motion  to  strike  out  a  clause 
requiring  a  defendant,  on  oath,  to  disclose  his  knowl 
edge  of  the  cause,  there  was  much  feeling  displayed. 
"  Up  now  rose  Ellsworth,  and  in  a  most  elaborate  ha 
rangue  supported  the  clause ;  now  in  chancery,  now 
in  common  law,  and  now  common  law  again,  with  a 
chancery  side."  But  the  amendment  was  passed,  and 
a  rage  of  speaking  caught  the  Senate.  Instead  of 
consenting  to  strike  out  the  clause,  Ellsworth  would 
have  met  the  objections  to  it  by  applying  the  rule  to 
the  plaintiff  also.  But  this  did  not  satisfy  the  opposi 
tion,  and  they  continued  to  press  him  the  next  day. 
So  again  "  up  rose  Ellsworth  and  threw  the  common 

1  Maclay's  Journal,  87. 

2  "  Ran  Ellsworth  so  hard,  and  the  other  anti-affirmants,  on  the  anti- 
constitutionalism  of  the  clause  that  they  at  last  consented  to  have  a  ques 
tion  taken  whether  the  clause  should  not  be  expunged,  and  expunged  it 
was."    Ibid.,  89.  8  Ibid.)  91-92. 

o 


194  OLIVER   ELLSWORTH 

law  back  all  the  way  to  the  wager  of  law,  which  he 
asserted  was  still  in  force."  Strong  of  Massachusetts 
taking  the  other  side,  "  Ellsworth's  temper  forsook  him. 
He  contradicted  Strong  with  rudeness;  said  what  the 
gentleman  asserted  was  not  fact ;  that  defendants  were 
admitted  as  witnesses ;  that  all  might  be  witnesses 
against  themselves.  Got  Blackstone;  but  nothing 
could  be  inferred  from  Blackstone  but  such  a  thing  by 
consent."  According  to  Maclay,  Ellsworth  lost  his 
own  amendment,  and  lost  the  clause.1  There  was 
another  stiff  contest  over  the  section  —  the  sixteenth 
—  which  prohibited  suits  in  equity  in  cases  where  a 
remedy  could  be  had  at  law,2  and  another  over  the 
judges'  powers  to  apprehend,  bail,  and  commit,3  Ells 
worth  each  time  leading  for  the  bill  as  it  stood.  Mac- 
lay  himself  was  somewhat  daunted  in  his  opposition 
when  he  learned  that  the  foremost  lawyers  of  Pennsyl 
vania —  the  Chief  Justice,  James  Wilson,  Judge  Peters, 
and  Tench  Coxe  among  them  —  had  indorsed  the 
plan  of  it.4  Ellsworth  growing  somewhat  more  ac 
commodating,  and  standing  firm  against  enlarging  the 
scope  of  chancery,  —  Maclay's  pet  aversion,  —  the  sus 
picious  old  democrat  began  to  think  a  trifle  better  of 
him  also.  They  two  stood  together,  in  a  contest  with 
nearly  all  the  lawyers  of  the  chamber,  against  admit 
ting  any  more  equity  proceedings  than  the  first  draft 
allowed ;  and  it  seems  that  they  won  their  fight.5 

1  Maclay's  Journal,  92-94.  8  Ibid.,  98-99. 

2  Ibid.,  94-95.  4  Ibid.,  102-103. 

6  Maclay  says  that  on  the  I3th  Ellsworth  made  a  motion,  practically 
identical  with  a  clause  lost  on  the  nth,  which,  from  the  context,  was  evi 
dently  the  anti-equity  clause ;  and  the  Senate  Journal  (p.  63)  shows  that 
a  clause  stricken  out  on  the  nth  was  restored  on  the  I3th.  For  the  whole 
discussion,  ibid.,  103-109. 


THE   SENATE  195 

"  Ellsworth  has  credit  with  me,"  Maclay  concedes ; 
and  again,  "  Ellsworth  .  .  .  has  credit  with  me  on  the 
whole  of  this  business.  The  part  he  has  acted  in  it  I 
consider  as  candid  (bating  his  caballing  with  John 
son)  and  disinterested."  But  on  the  final  vote  Maclay 
was  against  the  bill  as  a  whole,  and  when  it  passed  he 
was  again  visited  by  the  gloomiest  misgivings,  fearing 
that  all  the  state  judiciaries  were  going  to  be  swallowed 
up.1 

A  kindred  spirit  in  the  House  of  Representatives 
was  Livermore  of  New  Hampshire.  "  For  my  part," 
he  said,  "  I  contemplate  with  horror  the  effect  of  the 
plan ;  I  think  I  see  a  foundation  laid  for  discord,  civil 
war,  and  all  its  concomitants."  2  This  was  on  August 
24,  for  it  was  more  than  a  month  before  the  bill  was 
taken  up  in  the  House.  Up  again  on  August  29  and 
31,  it  slumbered  the  next  week  while  the  House  en 
gaged  in  what  Fisher  Ames  describes  as  "this  despi 
cable  grog-shop  contest,  whether  the  taverns  of  New 
York  or  Philadelphia  shall  get  the  custom  of  Con 
gress."3  Debated  from  September  8  to  15  in  com 
mittee  of  the  whole,  it  was  many  times  amended, 
though  probably  in  unimportant  ways,  then  reported 
back  to  the  House,  which  promptly  passed  it,  with  the 
amendments.  But  what  the  amendments  were  does 
not  appear,  for  the  proceedings  in  committee  are 
given  only  for  the  first  three  days,  when  none  were 
adopted.4 

The  discussion  during  those  three  days  was  over 
Livermore 's  motion,  substantially  identical  with  Lee's 

1  Maclay's  Journal,  117-118.  2  Annals  of  Congress,  I,  784-785. 

8  Ames's  Works,  I,  80. 

4  Annals  of  Congress,  782-894;  House  Journals,  I,  120-131. 


196  OLIVER   ELLSWORTH 

in  the  Senate,  to  give  up  all  the  inferior  tribunals  ex 
cept  the  courts  of  admiralty.  The  fight  against  the 
bill  was  vehemently  waged  by  Livermore,  by  Tucker, 
Burke,  and  Sumter,  of  South  Carolina,  by  Jackson  of 
Georgia,  and  by  Stone  of  Maryland.  Stone's  criticisms 
were  the  strongest  and  best  tempered.  He  made  a  fair 
retort  to  the  contention  that  Congress  had  no  author 
ity  to  invest  state  courts  with  a  jurisdiction  which 
the  Constitution  expressly  conferred  on  federal  courts, 
pointing  out  that  this  was  actually  done  in  the  bill  for 
causes  involving  small  amounts  ;  and  he  argued  well 
from  mere  policy  against  going  at  once  the  full  length 
of  the  constitutional  grant  of  authority.1  Jackson,  the 
enfant  terrible  of  the  first  House,  clamored  against  the 
inconvenience,  expense,  and  tyranny  of  the  plan.2 
People  would  not  submit,  he  thought,  to  be  dragged 
great  distances  from  their  homes  to  be  tried  by 
strangers.  The  principal  defenders  of  the  bill  were 
the  foremost  men  in  the  chamber,  —  Madison,  Sher 
man,  Ames  and  Sedgwick,  of  Massachusetts,  Benson 
and  Lawrence,  of  New  York,  and  William  Smith  of 
South  Carolina.  Smith  put  particularly  well  an  argu 
ment  which  Maclay  had  made  in  the  Senate,  viz.  that 
the  Constitution  was  really  mandatory  in  respect  of  the 
setting  up  of  inferior  courts,  since  it  directed  that  the 
judicial  power  be  vested  only  in  them  and  the  Supreme 
Court.  But  it  was  felt  all  along  that  the  bill  would 
pass,  substantially  as  it  was.3 

1  Annals  of  Congress,  809-812,  822-827. 

2  Ibid.,  801-804,  813-815. 

3  Ames  wrote,  September  6,  "  The  Judicial  slumbers,  and,  when  it  shall 
be  resumed,  will  probably  pass   as  an   experimental   law  without  much 
debate  or  amendment,  in  the  confidence  that  a  short  experience  will  make 
manifest  the  proper  alterations."     Works,  I,  71. 


THE   SENATE  197 

Ellsworth,  who  headed  the  Senate  committee  on 
the  House  amendments,  reported  in  favor  of  disagree 
ing  to  four,  amending  one,  and  agreeing  to  the  rest,1 
and  in  this  compromise  the  House  concurred.2  The 
bill  was  signed  by  John  Adams  on  September  22. 
Two  days  later,  Washington  signed  it,  and  immedi 
ately  sent  to  the  Senate  the  nominations  of  John  Jay 
to  be  Chief  Justice,  and  of  Rutledge,  Wilson,  William 
Gushing,  and  John  Blair  to  be  associate  justices  of 
the  Supreme  Court.  February  2,  1790,  at  New  York 
City,  in  a  room  provided  at  the  Exchange,  the  court 
was  organized,  and  the  Judiciary  Department  of  the 
government  went  into  full  operation.  It  is  hard  to 
see  how  any  one  could  have  disputed  with  Ellsworth 
the  distinction  of  having  had  the  chief  part  in  creat 
ing  it.  Apart  from  his  authorship  of  the  law,  his 
appointment  to  the  first  place  on  the  committee 
strengthens  the  conjecture  that  it  was  he  who,  on 
the  committee  of  five  in  the  Constitutional  Conven 
tion,  had  drafted  the  article  on  the  judiciary. 

Three  other  laws  were  passed  by  the  first  Congress 
to  supplement  the  judiciary  act,  and  two  of  these 
also  were  apparently  from  Ellsworth's  hand;  for  he 
headed  the  committees  which  severally  reported  an 
act  additional  to  the  judiciary  act  and  an  act  to 
define  crimes  and  offences  cognizable  under  the 
authority  of  the  United  States.3  He  also  helped  to 
frame  the  third  supplementary  law,  which  regulated 

1  There  were  at  least  fifty-two,  as  one  of  those  agreed  to  was  the  fifty- 
second. 

2  Senate  Journals,  137-140,  143.     Carson  ("History  of  the  Supreme 
Court,"  Ch.  2)  gives  a  history  of  the  bill,  drawn  from  authorities  already 
mentioned. 

8  Journals,  2d  Sess.,  12,  16,  17,  63. 


198  OLIVER   ELLSWORTH    * 

processes  in  the  courts.1  There  were  no  standing 
committees  during  these  early  years  of  the  Senate ; 
but  so  long  as  he  remained  a  senator  he  continued 
to  serve,  usually  as  chairman,  on  all  special  com 
mittees  charged  with  business  relating  to  the  judi 
ciary.  He  had,  therefore,  a  part,  and  doubtless  still 
the  chief  part,  in  such  changes  and  extensions  of  his 
handiwork  as  in  actual  operation  it  seemed  to  need. 
These,  however,  were  neither  many  nor  radical.  His 
scheme  stood  the  test  under  which  the  vast  majority 
of  laws  made,  as  this  was,  out  of  the  whole  cloth,  usu 
ally  come  to  grief.  It  worked.  One  of  his  commit 
tees  was  appointed  to  consider  certain  improvements 
recommended  by  the  members  of  the  Supreme  Court 
in  a  joint  letter  to  the  President,  but  these,  too,  were 
comparatively  unimportant.  It  was  ten  years  before 
the  first  really  radical  change  in  the  judiciary  was 
made,  and  that  was  made,  partly  at  least  and  proba 
bly  mainly,  from  partisan  motives.  Beaten  in  the 
elections  of  1800,  and  about  to  go  out  of  power,  the 
Federalists  passed  an  act  which  largely  increased 
the  number  both  of  districts  and  circuits,  relieved 
the  Supreme  Court  justices  of  all  circuit  duties,  and 
provided,  instead,  for  three  circuit  judges  for  every 
circuit.  The  act  created  twenty-three  new  judge- 
ships  in  all,  and  this  at  a  time  when  the  business  of 
the  courts  was  actually  decreasing.  President  Adams, 
on  the  very  eve  of  his  retirement,  filled  all  these  new 
places  with  Federalists.  But  one  of  the  first  acts  of 
the  Republicans  on  coming  into  power  was  to  repeal 
this  law  entirely,  throwing  the  new  judges  out  of 
office,  and  leaving  the  Ellsworth  law  again  in  force. 

1  Senate  Journals,  ist  Sess.,  153. 


THE   SENATE  199 

It  proved  sufficiently  elastic  to  serve,  with  exten 
sions  to  keep  pace  with  the  growth  of  the  country, 
but  with  no  real  changes,  until  1869,  when  the  great 
increase  of  business  led  again  to  a  provision  for  cir 
cuit  judges,  which  finally  relieved  the  Supreme  Court 
justices  of  all  circuit  duties.  This  modification  of  the 
system  was  followed  in  1891  by  an  act  still  farther 
to  relieve  the  Supreme  Court  by  setting  up  a  Circuit 
Court  of  Appeals,  to  have  final  jurisdiction  in  certain 
classes  of  cases  formerly  appealable  to  the  Supreme 
Court. 

But  even  these  changes  can  hardly  be  considered 
a  departure  from  Ellsworth's  general  scheme  of  the 
courts.  Most  of  the  great  judicial  structure  he  de 
vised  still  remains  intact  He  has,  therefore,  to  this 
day,  a  hold  on  the  life  of  his  countrymen  such  as 
few  even  of  the  most  illustrious  minds  of  his  own 
time  have  kept.  Makers  of  mere  laws  are  sometimes 
belittled  by  comparison  with  poets  and  artists  and 
founders  of  creeds.  But  there  are  laws,  particularly 
those  which  plant  institutions  capable  of  growth,  that 
go  very  deep  into  the  life  of  civilized  societies  and 
exert  for  ages  true  compulsions  and  restraints ;  and 
such  a  law  is  the  act  of  1789  "to  establish  the  Judicial 
Courts  of  the  United  States." 

It  will  always  remain  the  most  conspicuous 
monument  of  Ellsworth's  legislative  career.  But 
his  labors  in  the  Senate,  entirely  apart  from  the  ju 
diciary,  were  nothing  less  than  prodigious.  To  give 
the  mere  list  of  the  committees  he  served  on  and  the 
measures  he  framed  or  helped  to  frame  would  require 
several  pages.  The  reader  would  be  little  enlight 
ened,  and  certainly  wearied,  with  the  lifeless  journal 


200  OLIVER   ELLSWORTH  , 

entries  that  constitute,  in  many  instances,  the  sole 
record  and  evidence  of  the  share  he  had  in  legislation 
which,  by  reason  of  its  fundamental,  semi-constitu 
tional  character,  stands  apart  from  all  that  later  Con 
gresses  have  done,  save  when  they  have  either  adopted 
amendments  to  the  Constitution,  or  set  up  new  de 
partments,  or  in  other  ways  struck  out  entirely  new 
policies.  It  was  he  who  reported  back  from  a 
conference  committee  the  first  twelve  Constitutional 
amendments  which  Congress  submitted  to  the  states,1 
ten  of  which  were  ratified.  When  North  Carolina 
came  into  the  Union,  ceding  her  Western  lands  to  the 
new  government,  he  helped  to  frame  the  measure 
that  welcomed  her  and  accepted  the  cession ; 2  and  a 
little  later  he  reported  the  act  to  provide  a  govern 
ment  for  all  unorganized  territory  south  of  the  Ohio.3 
When  Rhode  Island,  at  the  end  of  a  year,  still  de 
clined  to  come  in,  it  was  he,  apparently,  who  found 
the  means  to  force  her  in.  The  means  was  a  non- 
intercourse  act;  and  a  few  weeks  later  Ellsworth 
wrote  of  it : 4  "  Rhode  Island  is  at  length  brought 
into  the  Union,  and  by  a  pretty  bold  measure  in  Con 
gress,  which  would  have  exposed  me  to  some  censure 
had  it  not  produced  the  effect  which  I  expected  it 
would,  and  which,  in  fact,  it  has  done.  But  *  all's 
well  that  ends  well.'  The  Constitution  is  now 
adopted  by  all  the  States,  and  I  have  much  satisfac- 

1  Senate  Journals,  ist  Sess.,  142,  145. 

2  Ibid.,  2d  Sess.,  18-20,  29,  33 ;  Maclay,  202-203,  226?  236- 

3  Journals,  2d  Sess.,  55,  56-59. 

4  June   7,  1790,  —  "to   a  friend,"   Flanders,  163;   Journals,  2d   Sess., 
63,  75-76 ;  Maclay,  259,  264,  266.    "  Ellsworth  spoke  with  great  delibera 
tion,  often  and  long,"  says  Maclay ;   and  again,  "...  Ellsworth  spouted 
out  for  it." 


THE   SENATE  2OI 

tion,  and  perhaps  some  vanity,  in  seeing,  at  length,  a 
great  work  finished,  for  which  I  have  long  labored 
incessantly."  He  dealt  with  the  question  of  salaries 
for  the  President  and  Vice-President  and  other  offi 
cials,  and  he  reported  at  the  end  of  the  year  the  sums 
due  to  himself  and  his  brother  senators  for  mileage 
and  attendance  —  a  fairly  strong  proof  in  itself  that 
he  was  trusted  by  his  fellows.1  He  fought  for  and 
carried  a  joint  rule  that  at  the  beginning  of  a  new 
session  of  Congress  all  business  should  be  taken  up 
de  novo?  He  wrote  the  first  act  concerning  the  con 
sular  service.8  He  helped  to  make  the  first  plans  for 
the  military  establishment,4  the  postal  service,5  and 
a  census.6  While  the  departments  were  being  or 
ganized,  he  took  a  firm  stand  on  an  important  ques 
tion  over  which  the  President  and  the  Senate  have 
more  than  once  fallen  into  violent  contention.  In 
July,  1789,  there  was  a  heated  debate  over  the  power 

1  Journals,  ist  Sess.,  87  ;  3d  Sess.,  122  ;  4th  Sess.,  49 ;  Maclay,  140,  144, 
147.     Ellsworth  seems  to  have  crossed  Adams  by  favoring  low  pay  for 

senators. 

2  Journals,  2d  Sess., 13-15;  Maclay,  179,  181-183,  185.     Maclay  implies 
that  the  rule  was  adopted  to  get  rid  of  some  action  already  taken  on  the 
question  of  residence. 

3  ".  .  .  And,  of  course,  he  hung  like  a  bat  to  every  particle  of  it." 
Ibid.,  368. 

4  Journals,  2d  Sess.,  98  ;  Maclay,  239,  241-245,  250-251. 

5  Journals,  ist  Sess.,  132  ;  2d  Cong.,  ist  Sess.,  96,  etc. ;  2d  Sess.,  150. 

6  Ibid.,  ist  Sess.,  26.   Johnston  (of  North  Carolina)  "  had  said  something 
against  the  bill  as  it  stood,  but  when  Ellsworth  made  his  motion,  he  got  up 
to  tell  how  convincing  the  gentleman's  arguments  were,  and  that  they  had 
fully  convinced  him.  ...    I  got  a  hard  hit  at  Ellsworth.      He  felt  it  and  did 
not  reply.     The  bill  was  immediately  afterward  committed  and  the  Senate 
adjourned.      Ellsworth  came  laughing  to  me ;  said  he  would  have  distin 
guished  with  respect  to  the  point  I  brought  forward.     I  said,  '  Ellsworth, 
the  man  must  knit  his  net  close  that  can  catch  you ;  but  you  trip  some 
times.1     So  we  had  a  laugh  and  parted."     Maclay,  195-197. 


202  OLIVER   ELLSWORTH 

of  removal  from  appointive  offices,  and  John  Adams, 
seeing  the  importance  of  the  subject,  entered  in  his 
diary  some  notes  of  the  speeches.  This  is  his  report 
of  Ellsworth's : 1 

"  Ellsworth.  We  are  sworn  to  support  the  Con 
stitution.  There  is  an  explicit  grant  of  power  to  the 
President,  which  contains  the  power  of  removal.  The 
executive  power  is  granted ;  not  the  executive  powers 
hereinafter  enumerated  and  explained.  The  Presi 
dent,  not  the  Senate  appoints :  they  only  consent  and 
advise.  The  Senate  is  not  an  executive  council ;  has 
no  executive  power.  The  grant  to  the  President  is 
express,  not  by  implication." 2 

And  yet  he  found  the  time  and  energy  to  enter  into 
the  discussion  of  the  four  subjects  over  which  the  first 
Congress  divided  with  the  greatest  heat.  These  were, 
the  revenue,  the  seat  of  government,  the  debt,  and  the 
bank. 

The  first  tariff  bill  that  came  up  from  the  House 
of  Representatives  had  originated  with  Madison,  and 
Ellsworth  must  have  recognized  it  as  the  consumma 
tion  of  the  plan  for  a  permanent  revenue  which  he 
and  Madison  and  Hamilton  had  commended  to  the 
states  in  April,  1783.  The  duties  were  not  high,  but 
many  articles  had  been  added  to  Madison's  original 
list,  and  some  of  the  duties  were  specific.  The  prin 
ciple  of  protection  had  been  introduced,  and  the  in 
terests  of  different  states  and  sections  had  been  drawn 

1  Adams's  Works,  409. 

2  See  also  Maclay,  144,  for  the  same  speech,  and  112-114,   116,  for 
Ellsworth's  part  in  the  controversy.      He  seems  to  have  felt  very  strongly, 
indeed,  on  the  whole  question  of  the  power  and  independence  of  the 
President,  fearing  that  the  system  would  fail  because  the  executive  arm 
was  not  made  strong  enough. 


THE   SENATE  203 

at  once  into  controversy.  New  England  representa 
tives  had  fought  for  high  duties  on  rum  and  low 
duties  on  molasses,  that  they  might  continue  to  im 
port  the  one  in  order  to  manufacture  and  export  the 
other ;  and  they  had  also,  in  the  interest  of  the  fish 
eries,  opposed  the  duty  on  salt.  On  this  last  item, 
Ellsworth,  unlike  most  New  England  men,  did  not 
follow  the  lead  of  eastern  Massachusetts.  At  first, 
he  was  also  against  any  discrimination  in  favor  of  our 
own  merchant  vessels  engaged  in  the  tea  trade  with 
the  East ;  and  by  changing  his  mind  on  that  subject 
he  convinced  Maclay  that  he,  like  others,  was  "  gov 
erned  by  convenience  or  cabal."  In  the  end,  he 
headed  the  committee  which  reported  the  Senate's 
decision  on  the  question,2  and  he  rendered  a  like 
service  on  the  question  of  trade  relations  with  the 
West  Indies  and  other  parts  of  America.3  He  stood 
out  against  the  proposal  to  discriminate,  both  in  the 
tariff  bill  and  in  the  tonnage  bill  which  followed  it, 
in  favor  of  France  and  other  nations  with  which  we 
were  in  treaty;4  and  he  served  on  the  committee 
of  conference  which  gave  to  both  these  essential 
measures  their  final  character.  So  concerned  was  the 
Senate  over  this  particular  conference  that  while  it 
lasted  no  other  business  was  taken  up. 5  Throughout 
the  discussion,  Ellsworth  appears  as  one  of  those  whose 
chief  anxiety  was  for  the  actual  success  of  the  revenue 
measures,  not  for  the  special  interests  which  they  might 
endanger  or  advance.  At  the  second  session,  when 
Hamilton,  who  was  now  at  the  head  of  the  Treasury 

1  Maclay,  57,  60,  61,  68.  4  Maclay,  89. 

2  Ibid.,  71  ;  Journal,  1st  Sess.,  46.  6  Journals,  ist  Sess.,  55. 
8  Ibid.,  87;  2d  Sess.,  26. 


204  OLIVER   ELLSWORTH 

Department,  recommended  an  increase  of  the  revenue, 
Ellsworth  seems  to  have  championed  even  more  zeal 
ously  the  bill  which  carried  out  the  secretary's  desire.1 
At  the  third  session,  when  an  excise  bill,  aimed  par 
ticularly  at  whiskey,  was  sent  up  from  the  House,  he 
had  the  courage  to  be  the  Senate  manager  of  that 
unpopular  measure,  which  eventually  caused  the  so- 
called  "  Whiskey  Rebellion." 2 

On  the  question  of  the  seat  of  government,  he  took 
in  the  first  session  a  decidedly  Eastern  stand.  For  the 
permanent  seat  he  favored  the  Susquehanna  as  against 
any  point  farther  southward  ;  and  for  a  temporary  seat 
he  stood  out  for  New  York  as  against  Philadelphia. 
Later,  he  did  once  vote  for  Baltimore  for  the  perma 
nent  seat ;  but  probably  only  in  preference  to  a  site  on 
the  Potomac,  for  he  was  against  the  bill  that  finally 
passed.  This  would  seem  to  indicate  that  his  was 
not  one  of  the  votes  that  were  changed  to  carry  out 
the  famous  bargain  by  which  Hamilton  secured  the 
assumption  of  the  debts  of  the  states  in  return  for  the 
concession  of  the  capital  to  the  South.3  But  from  this 
it  must  not  be  inferred  that  Ellsworth  was  lacking  in 
ardor  either  for  assumption  or  for  a  firm  and  national 
policy  with  all  the  different  schedules  of  the  debt. 
Holding  that  they  were  all  parts  of  the  price  of  inde 
pendence,  he  was  for  acknowledging  the  entire  obli- 

1  Journals,  2d  Sess.,  190,  194-196. 

2  Ibid.,  3d   Sess.,  43,  47,   88;    Maclay,  381.     "Ellsworth   could   not 
rest  a  moment  all  this  day  (Jan.  27,  1791).     He  was  out  and  in,  in  and 
out,  all  on  the  fidgets.     Twice  or  thrice  was  an  adjournment  hinted  at, 
and  as   often  did  he  request  that  it  might  be  withdrawn,  expecting  the 
excise  bill  to  be  taken  up." 

3  Journals,  ist  Sess.,  147-149;  2d  Sess.,  97-99,  127-128,  131,  134,  141, 
144;  Maclay,  158,  275,  293,  308,  313,  395. 


THE   SENATE  205 

gation  and  taking  measures  to  fund  it,  principal  and 
interest,  and  for  providing  the  means  to  carry  it  and 
eventually  discharge  it.  It  seems,  in  fact,  that  he  was 
again  peculiarly  responsible  for  the  way  in  which  the 
subject  was  finally  disposed  of ;  for  the  funding  bill  as 
it  passed,  including  the  provision  for  assumption,  origi 
nated  in  a  resolution  which  he  offered  in  the  Senate 
early  in  July,  1790.  At  that  time,  the  seat  of  gov 
ernment  was  not  yet  chosen,  assumption  had  been 
defeated  in  the  House,  and  a  House  funding  bill,  with 
no  provision  for  the  debts  of  the  states,  was  in  the 
hands  of  a  Senate  committee  of  which  Ellsworth  was 
a  member.  It  is  entirely  probable  that  he  knew  of  the 
agreement  by  which,  in  return  for  Jefferson's  help  in 
passing  the  assumption  bill,  Hamilton  was  to  pro 
cure  enough  votes  to  fix  the  capital  on  the  Potomac.1 
Ellsworth's  resolution  was,  "  That  provision  be  made 
the  next  session  of  Congress  for  loaning  to  the  U.S. 
a  sum  not  exceeding  twenty-two  millions  of  dollars, 
in  the  certificates  issued  by  the  respective  states  for 
service  or  supplies  for  the  prosecution  of  the  late  war, 
the  certificates  which  shall  be  loaned  to  stand  charged 
to  the  respective  states  by  whom  they  were  issued 
until  a  liquidation  of  their  accounts  with  the  United 
States  can  be  completed." 2  Laid  on  the  table  until 
the  residence  bill,  which  passed  the  House  two  days 
later,  had  also  passed  the  Senate,  this  resolution  was 
then  referred  to  a  committee  which  soon  reported  it 

1  For  a  good  account  of  the  status  of  the  two  measures,  showing  the 
relation  of  Ellsworth's   motion  to  the  compromise,  see  Hunt's  "  Life  of 
Madison,"  197-200. 

2  Journals,  2d  Sess.,  104,  108.     He  had  given  notice  the  day  the  House 
funding  bill  came  up.     See  also  Maclay,  288.     Maclay's  record  indicates 
that  Ellsworth  was  the  first  to  propose  assumption  in  the  Senate. 


206  OLIVER   ELLSWORTH 

back  lengthened  into  a  set  of  resolutions.  These 
being  in  turn  committed  along  with  the  funding  bill, 
both  were  finally  reported  in  the  form  of  a  bill  dealing 
with  the  entire  debt.  Ellsworth  was  a  member  of  both 
committees,  as  he  was  also  of  the  committee  and  the 
conference  committee  which  handled  the  old  accounts 
with  the  states.1  He  spoke  repeatedly  on  the  funding 
bill,  both  before  and  after  the  assumption  was  incor 
porated  in  it.  According  to  Maclay,  he  was  trying 
uto  reconcile  the  secretary's  (Hamilton's)  system  to 
the  public  opinion  and  welfare."2  But  from  another 
source  we  learn  that  on  at  least  two  not  unimportant 
details  he  differed  with  Hamilton.  July  20,  Oliver 
Wolcott,  Jr.,  a  son  of  Ellsworth's  old  friend  and  col 
league  in  the  Continental  Congress,  and  now,  proba 
bly  by  Ellsworth's  influence,  auditor  of  the  Treasury, 
wrote  to  his  brother  Frederic : 8 

"  The  great  question  is  now  respecting  interest. 
Our  friend,  Mr.  Ellsworth,  in  the  Senate,  has  been  of 
opinion  that  it  was  not  expedient  to  fund  the  public 
debt  at  a  higher  rate  of  interest  than  four  per  cent. 
That  this  sum,  punctually  paid,  would  answer  the 
expectations  of  the  creditors,  the  requirements  of 
justice,  and  would  better  secure  the  public  honor 
than  a  promise  of  a  higher  provision,  which  would, 
under  the  circumstances  of  this  country,  be  attended 
with  great  risk  of  failure. 

"  He  has  also  been  dissatisfied  with  the  secretary's 

1  Journals,  2d  Sess.,  147,  154. 

2  Maclay,  290.     For  Ellsworth's  connection  with  funding  and  assump 
tion,  see  also  ibid.,  287-291,  298,  300-301,  314,  325-328  ;  Journals,  2d  Sess., 
142,  145,  147,  H9>  173- 

8  Gibbs,  I,  49.  In  the  same  volume  (20,  22)  are  two  letters  from  Ells 
worth  concerning  the  appointment  of  Wolcott  to  the  auditors  hip. 


THE   SENATE  207 

proposal  of  leaving  one-third  of  the  debt  unfunded  for 
ten  years,  as  this  measure  would  tend  to  encourage 
speculations,  and  would  leave,  after  ten  years,  a  great 
burden  upon  the  country,  with  little  advantage  to 
foreigners,  who  would  purchase  that  part  of  the  debt 
at  a  low  rate. 

"  These  opinions  have  been  supported  by  him  with 
all  that  boldness  and  reason  which  give  him  a  pre 
dominant  influence  in  the  Senate.  He  has,  however, 
been  warmly  opposed,  and  a  compromise,  it  is  said,  has 
been  made  to  fund  the  principal  of  the  domestic  debt 
in  the  following  manner:  For  every  $100  principal, 
66f  to  be  funded  presently  at  6  per  cent,  and  26^8Q- 
after  ten  years  at  the  same  rate.  The  indents  and 
all  arrearages  of  interest,  which  amount  to  about 
one-third  of  the  debt,  to  be  funded  at  3  per  cent. 
This,  it  is  said,  will  give  about  45  3  per  cent  interest 
for  the  entire  debt. 

"A  resolution  has  passed  the  Senate  for  funding 
the  state  debts  at  the  same  rate  as  the  continental 
debt;  but  all  these  things  may,  and  probably  will 
assume  a  different  modification  before  the  session  is 
completed." 

But  Wolcott's  information  concerning  the  compro 
mise  arrangement  proved  correct.  Within  a  month, 
the  funding  bill,  including  assumption,  was  carried 
through  both  houses  substantially  as  he  described  it. 
All  that  was  then  needed  to  complete  Hamilton's 
general  scheme  of  finance  was  a  bank;  and  in  this 
step  also  Ellsworth,  from  his  experience  in  the  old 
Congress,  could  render  valuable  aid.  When  the 
secretary's  report  on  the  bank  was  received,  the  first 
Congress  being  then  in  its  third  session,  he  served  on 


208  OLIVER   ELLSWORTH 

the  committee  which  considered  it  and  prepared  a  bill, 
and  he  spoke  and  voted  for  the  bill  itself,1  which  passed 
with  no  radical  amendments. 

By  these  bold,  firm  measures  the  new  government 
accomplished  at  the  outset  an  immense  gain  of  pres 
tige,  won  the  propertied  class  to  its  support,  raised 
its  credit,  and  by  the  quick  success  of  its  policies 
soon  stimulated  industry  to  a  great  revival  all  over 
the  country.  For  all  this  Hamilton  is  chiefly  to 
be  praised;  but  he  could  never  have  achieved  his 
designs  without  skilful  and  courageous  management 
in  Congress ;  and  all  the  evidence  we  have  goes  to 
indicate  that  in  the  Senate  no  man  did  more  to  carry 
through  the  programme  than  the  junior  senator  from 
Connecticut.  It  is  doubtful  if  any  other  senator  did 
so  much. 

Ellsworth's  first  term  ended  with  the  life  of  the  first 
Congress,  but  he  was  reflected  to  serve  until  1797. 
After  1791,  however,  there  is  no  Maclay's  diary  to 
give  meaning  and  life  to  the  journal  record,  and  it  is 
impossible  to  follow  with  any  assurance  of  a  right 
comprehension  the  votes  and  other  officially  recorded 
acts  of  any  senator.  Save  as  Ellsworth  is  revealed  to 
us  in  contemporary  letters  and  the  recollections  of  his 
associates,  we  must  rest  content  with  the  salient  facts 
of  his  undiminished  energy  and  ceaseless  activity,  his 
maintenance  of  the  leadership  already  established,  and 
the  stands  he  took  on  the  greater  questions  of  the  time. 
Besides  his  watchful  interest  in  all  that  pertained  to 
the  judiciary,  there  were  certain  routine  duties  of  the 
Senate,  nowadays  the  province  of  standing  committees, 
with  which,  at  each  successive  session,  his  name  is 

1  Journals,  3d  Sess.,  21,  33,  35  ;  Maclay,  370-371- 


THE   SENATE  209 

regularly  associated.  He  was  one  of  the  senators  who 
revised  the  annual  appropriations  as  they  came  from 
the  House.1  He  concerned  himself  particularly  with 
the  regulation  of  the  consular  service.2  Again  and 
again  he  considered  the  cases  of  persons  applying  for 
pensions.8  When  the  right  of  Albert  Gallatin  to  sit 
for  Pennsylvania  was  challenged,  he  served  on  the  first 
Senate  elections  committee  and  helped  to  prepare  a 
report  against  the  claim  of  the  brilliant  young  Swiss.4 
On  one  occasion,  near  the  end  of  a  session,  as  chair 
man  of  a  special  committee,  he  took  charge  of  four  not 
unimportant  subjects,  and  the  next  day  reported  three 
bills  to  dispose  of  them.5 

But  his  time  and  energy  were  more  and  more 
absorbed  by  questions  which  owed  their  interest  to 
party  controversy  quite  as  much  as  to  their  own  intrin 
sic  importance.  For  the  second  Congress  was  but  a 
few  months  old  when  Fisher  Ames  could  write,  truth 
fully  enough,  that  the  opposition  to  the  policies  of  the 
administration  had  become  "  a  regular,  well  disciplined 
party."6  So  much,  at  least,  Jefferson  had  accomplished 
within  a  year  to  offset  the  brilliant  achievements  of 
Hamilton  in  the  actual  working  of  the  government. 
In  1791,  George  Cabot  of  Massachusetts  came  to  join 
Ellsworth,  King,  and  Strong,  leaders  of  the  adminis 
tration  party  in  the  Senate ;  but  at  the  same  time 
Aaron  Burr's  name  was  entered  on  the  roll.  It  was 
not  long  before  Langdon  of  New  Hampshire  went 

1  Journals,  2d  Cong.,  ist  Sess.,  269 ;  3d  Cong.,  ist  Sess.,  191 ;  4th  Cong., 
ist  Sess.,  58. 

2  Ibid.,  2d  Cong.,  ist  Sess.,  31. 

8  Ibid.,  109,  149;  2d  Sess.,  32,  68,  etc. 

4  Ibid.,  3d  Cong.,  ist  Sess.,  16,  29,  61,  62. 

5  Ibid.,  147,  149.  6  Works,  I,  118. 


210  OLIVER   ELLSWORTH 

over  to  Jefferson's  following,  which  in  the  third  Con 
gress  controlled  the  House  of  Representatives,  and  on 
several  occasions,  but  for  the  casting  vote  of  Adams, 
would  have  deadlocked  the  Senate.  The  true  sources 
of  the  strength  of  this  opposition  cannot  here  be  ana 
lyzed.  It  is  enough  to  say  that  its  attacks  were  made 
first  on  the  financial  policy  of  the  administration,  then 
on  its  foreign  policy.  But  the  outcry  against  the 
assumption  and  the  bank  gradually  lessened  with  the 
coming  of  prosperity,  and  the  discontent  with  the  reve 
nue  measures  was  speedily  put  out  of  countenance 
by  the  low  character,  the  trifling  proportions,  and  the 
swift  and  easy  suppression  of  the  Whiskey  Rebellion 
in  Pennsylvania.  In  this  episode,  the  readiness  of 
Hamilton  and  the  firmness  of  Washington  turned  what 
might  have  been  a  fatal  revelation  of  the  government's 
weakness  into  a  proof  of  its  strength  and  a  means  of 
discomfiting  its  opponents. 

Readiness  and  firmness  in  the  legislature  also  were 
needed,  and  these  qualities  the  Federalist  senators  and 
congressmen  at  once  displayed.  They  took  measures 
promptly  to  strengthen  the  military  establishment, 
passing  acts  to  build  magazines  and  arsenals,  and  to 
encourage  recruiting,1  and  they  upheld  Washington's 
hands  with  their  addresses  to  the  President  and  with 
speeches  in  the  chambers.  In  the  summer  of  1794, 
while  the  so-called  insurrection  was  in  progress,  Ells 
worth  wrote  from  Windsor  to  the  younger  Wolcott, 
whose  office  kept  him  in  Philadelphia,  that  he  thought 
the  use  of  the  militia  indispensable ;  and  that  Wash 
ington —  "who  seldom  mistakes,  and  as  we  believe 

1  See,  for  Ellsworth's  part  in  these  activities,  Senate  Journals,  3d  Cong., 
ist  Sess.,  43,  92,  117,  153,  157,  etc. 


THE   SENATE  21 1 

never  "  —  could  count  on  the  steadfast  support  of  Con 
necticut,  and  indeed  of  all  New  England.  But  at  the 
end  he  added :  "  Pray  keep  me  well  informed  of  this 
rebellion,  which  I  hope  to  see  brought  to  a  good  issue. 
And  tell  me  as  much  as  you  may  of  what  Mr.  Jay 
writes  —  I  think  the  two  subjects  are  related."  * 

The  remark  is  a  good  index  to  Ellsworth's  view  of 
the  political  situation,  and  indeed  of  the  entire  state 
of  our  affairs.  That  summer,  Jay  was  in  England, 
and  to  follow  the  train  of  causes  which  had  sent  him 
thither  would  be  to  write  the  political  and  diplomatic 
history  of  the  five  years  that  went  before. 

The  mission  was  the  immediate  outcome  of  a  plan 
which  had  originated  with  Ellsworth  and  his  Senate 
confreres  rather  than  with  Washington.  The  warlike 
measures  they  had  prepared  in  accordance  with  the 
President's  recommendations  had  not  been  aimed 
chiefly  at  the  malcontents  at  home.  Washington 
had  been  deeply  concerned  over  our  relation  to  the 
contest  between  England  and  France.  Notwithstand 
ing  that  his  whole  desire  was  for  peace  and  an  honor 
able  neutrality,  he  had  urged  Congress  to  prepare  for  a 
possible  foreign  war.  The  opposition,  siding  openly 
with  France,  had  seemed  bent  on  forcing  the  admin 
istration  into  a  complete  break  with  England;  while 
the  extreme  Federalists  had  been  brought  into  a  mood 
of  intense  hatred  for  France  and  of  too  marked  par 
tiality  for  Great  Britain.  Genet,  the  light-headed 
minister  of  the  new  French  republic,  had  done  all  that 
could  be  done  by  tactlessness,  and  by  an  utter  disre 
gard  of  our  neutral  rights,  to  drive  us  either  to  a  sub 
servient  alliance  or  to  a  rupture  with  his  government. 

1  Gibbs,  I,  158-159. 


212  OLIVER   ELLSWORTH 

But  England,  on  the  other  hand,  by  a  course  hardly 
less  contemptuous  and  even  more  damaging  to  our 
interests,  seemed  to  be  doing  her  best  to  offset  the 
folly  of  Genet  and  the  intemperate  behavior  of  his 
American  admirers.  The  discontent  of  the  South 
west,  and  the  threatening  attitude  of  Americans  in 
that  quarter  toward  the  Spanish  in  New  Orleans, 
increased  the  tension.  There  was  a  widespread  con 
viction  that  we  should  soon  have  a  war,  the  only  un 
certainty  being,  with  which  of  the  powers  we  should 
fight.  In  this  predicament,  the  whole  course  of  poli 
tics  turned  on  our  foreign  relations,  to  an  extent  that 
now  passes  belief.  Even  Ellsworth  became  for  a  time 
completely  absorbed  in  international  questions. 

As  usual,  however,  he  kept  his  head.  He  was  one 
of  the  few  who  in  their  anger  with  opponents  at  home 
and  their  indignation  at  foreign  outrages  never  forgot 
their  patriotism,  and  who  in  their  patriotism  never 
once  lost  sight  of  the  main  chance  —  the  real  and  per 
manent  interests  of  the  country.  Zealously  supporting 
the  administration  in  making  ready  for  war,  he  was 
yet  firm  for  peace ;  and  he  never  despaired  of  it.  Quite 
out  of  sympathy  with  the  enthusiasm  for  the  French 
notion  of  liberty,  he  made,  as  early  as  1 790,  a  speech 
in  which  he  ridiculed  France's  claim  to  our  gratitude.1 
He  voted  later  to  soften  some  over-ardent  resolutions 
congratulating  France  on  the  adoption  of  a  republican 
form  of  government,  he  supported  the  bill  denying  her 
the  use  of  our  ports  for  prizes,  and  he  seconded  Cabot's 
motion  to  strike  out  the  phrase,  "that  magnanimous 
nation,"  from  another  set  of  resolutions  thanking  her 

1  Maclay,  405,  calls  the  speech  "  a  burst  of  abuse  .  .  .  against  the 
French  in  the  most  vituperative  language  that  fancy  could  invent." 


THE   SENATE  213 

for  a  gift  of  colors.1  He  was  also  against  a  temporary 
embargo  which  passed,  and  against  a  bill  to  prohibit 
all  importations  from  Great  Britain,  which  was  beaten 
only  by  Adams's  vote.2  But  he  went  into  no  excess  of 
partisanship  for  the  British.  The  governing  considera 
tion  with  him  seems  to  have  been  that  friendship  and 
trade  with  England  were  worth  more  to  us  than  any 
thing  France  could  offer.  In  January,  1794,  when  the 
Republicans  were  clamoring  for  war  with  England, 
and  many  who  opposed  it  thought  it  unavoidable,  he 
wrote  to  his  friend,  Judge  Law:3  "As  to  the  war 
between  this  country  and  England,  so  much  dreaded 
by  some  and  wished  for  by  others,  /  think  it  will  not 
take  place.  Complaint  of  Mr.  Genet  has  been  made 
to  his  Court,  with  a  request  of  his  recall.  The  answer 
is,  that  they  disapprove  of  his  conduct,  and  will  im 
mediately  recall  him.  The  fact  however  is,  that  he 
has  not  done  but  part  of  the  mischief  he  has  been  sent 
to  do."  And  early  in  March  he  wrote  to  his  brother 
David:4  "As  to  war,  sir,  I  still  think  that  we  shall 
avoid  it,  notwithstanding  all  the  difficulty  and  danger 
attending  our  condition.  Should  I  at  any  time  think 
it  advisable  for  you  to  sell  the  whole  or  part  of  your 
stock  I  shall  certainly  tell  you  of  it."  A  few  weeks 
later,  writing  to  the  elder  Wolcott  about  Madison's 
resolutions  for  discriminating  against  all  nations  not 
in  trade  with  us,  he  agreed  with  his  correspondent  that 
they  could,  if  passed,  produce  nothing  but  mischief. 
The  debts  of  the  South  were,  he  thought,  a  principal 
factor  in  creating  the  situation  "  by  opposing  compul- 

1  Journals,  2d  Cong.,  ist   Sess.,  155;   3d  Cong.,  ist  Sess.,  118-119; 
4th  Cong.,  ist  Sess.,  44. 

2  Ibid.,  3d  Cong.,  ist  Sess.,  118-119,  J65- 

8  Jan.  20,  1794,  Wood  Ms. ;  Flanders,  168-169.  4  March  4,  1794. 


214  OLIVER   ELLSWORTH 

sive  energy  of  the  government,  generating  mist  and 
irritation  between  this  country  and  Great  Britain,  and, 
of  course,  giving  a  baleful  ascendancy  to  French  influ 
ence."  But  he  added :  "  I  hope  in  a  few  days  we  shall 
see  the  business  turned  into  a  channel  of  negociation, 
and  a  respectable  envoy  sent  to  London,  on  the  sub 
ject  of  commercial  spoliations.  A  negociation  of  this 
kind,  with  proper  interior  arrangements  to  give  weight, 
would,  I  presume,  save  us  from  war. " * 

When  Ellsworth  expressed  such  a  definite  hope  as 
this,  the  chances  were  that  it  was  already  by  way  of 
being  realized.  From  the  letters  of  two  or  three  other 
Federalist  leaders,  as  well  as  from  his  own  cautious 
outgivings  and  the  recollections  of  the  members 
of  his  family,  we  know  that  he  did  not  speak  of  the 
mission  to  England  until  he  and  a  small  group  of  his 
friends  had  taken  steps  to  bring  it  about ;  he  may  even 
have  had  it  in  mind  as  early  as  his  letter  to  his  brother.2 
At  any  rate,  the  mission  was  first  considered  about  the 
beginning  of  March,  when  Madison's  anti-British  reso 
lutions  and  other  proposals  in  the  House  put  an  end 
to  all  friendly  relations  between  the  two  countries.  The 
son  and  biographer  of  Hamilton  has  asserted  that  the 
first  suggestion  of  it  came  from  him,  and  this  may  very 
well  be  true ;  but  the  proof  is  wanting.3  What  seems 
fairly  certain  is  that  the  plan  was  first  proposed  to  Wash 
ington  by  Ellsworth. 

1  April  5,  1794,  Gibbs,  I,  134-135- 

2  It  is   interesting  to  compare  his  correspondence  at  this  time  with 
his  speeches  in  the  Constitutional  Convention  before  the  so-called  Con 
necticut  compromise  was   accepted.       Both   illustrate  his   coolness   and 
balance. 

3J.  C.  Hamilton's  "History  of  the  Republic,"  V,  532-535  ?  H-  c- 
Lodge's  "  Life  of  George  Cabot,"  67,  and  note. 


THE   SENATE  215 

On  March  10,  Ellsworth,  King,  Strong,  and  Cabot 
had  held  a  conference  and  considered  the  whole  situa 
tion.  It  was  plain  that  the  House  of  Representatives 
was  partial  to  France  and  hostile  to  England,  and  there 
were  many  signs  that  the  country  was  with  the  House. 
England,  by  her  disregard  of  our  rights  as  a  neutral, 
—  her  orders  in  council,  her  seizures  of  our  ships  and 
impressments  of  our  sailors,  —  was  daily  feeding  the 
popular  wrath  against  her.  France,  though  guilty  of 
equal  outrages,  had  the  sympathy  of  the  populace,  and 
the  skilful  advocacy  of  Jefferson  and  other  Republi 
can  leaders.  Even  in  the  Senate,  the  slight  Federalist 
majority  could  not  be  depended  on ; l  and  the  Genet 
episode  had  showed  that  the  great  prestige  of  Wash 
ington  might  not  long  suffice  to  uphold  a  policy  the 
masses  detested.  There  could  be  no  doubt  that  we 
were  really  in  danger  of  drifting  into  war,  and  that 
England,  rather  than  France,  would  be  the  enemy. 
The  outcome  of  the  conference  was  a  unanimous 
decision  that  an  envoy  extraordinary  ought  to  be  sent 
to  England  to  negotiate  a  treaty  of  commerce,  and 
Ellsworth  was  chosen  to  go  at  once  and  lay  the  mat 
ter  before  the  President. 

He  accordingly  sought  an  interview.  When  he  had 
gone  over  the  situation,  dwelling  on  the  crisis  in  our 
foreign  relations,  and  pointing  out  that  it  was  sure  to 
aggravate  our  domestic  difficulties,  Washington  asked 
him  what  was  to  be  done.  Ellsworth  replied  by  pro 
posing  to  send  an  envoy  or  envoys  to  England,  and 
mentioned  Hamilton  and  Jay  as  men  whom  he  and 
his  friends  had  agreed  to  recommend.  The  President, 
it  seemed,  was  taken  completely  by  surprise.  Although 

1  H.  C.  Lodge's  "  Life  of  George  Cabot,"  95. 


216  OLIVER   ELLSWORTH 

the  two  discussed  the  project  at  length,  he  would  not 
at  once  commit  himself.  At  the  end  of  the  interview, 
he  said  merely,  "  Well,  sir,  I  will  take  the  subject  into 
consideration."  * 

But  it  did  not  take  him  many  weeks  to  make  up  his 
mind ;  and  somehow  a  rumor  soon  got  about  that  he 
was  going  to  make  Hamilton  the  envoy.  James  Mon 
roe  heard  it,  and  at  once  wrote  to  remonstrate,  for  to 
the  Republicans  there  was  no  other  name  quite  so  ob 
noxious  as  Hamilton's.  Washington,  in  reply,  asked 
for  a  statement  of  the  objections  to  Hamilton,  and  this 
Monroe  failed  to  give.  But  it  was  decided,  and  no 
doubt  wisely,  that  to  appoint  Hamilton  would  provoke 
an  unavoidable  opposition  to  the  mission.  Washing 
ton  turned,  accordingly,  to  John  Jay,  who  had  not  yet 
been  drawn  into  the  more  violent  party  controversies ; 
and  this  choice  Hamilton  heartily  approved.2  To  Jay 
himself,  however,  the  call  was  most  unwelcome,  for  he 
foresaw  that  the  service  would  make  him  unpopular.8 
The  following,  from  a  letter  to  Wolcott,  written 
April  1 6,  1794,  may  indicate  that  Ellsworth  was  one 
of  those  who  helped  Jay  to  see  that  it  was  his  duty  to 
accept : 4 

"  In  a  late  letter  I  suggested  to  you  the  idea  of 
turning  our  grievances  into  a  channel  of  negotiation. 
I  now  venture  to  assure  you  that  Mr.  Jay  will  be 
sent  as  special  envoy  to  the  Court  of  London,  with 

1  Wood  Ms. ;  O .  E.  Wood,  in  New  York  Evening  Post ;  Lodge's  «  Cabot," 
67;  Lodge's  Address  on  Ellsworth,  in  "A  Fighting  Frigate   and   Other 
Essays,"  86-87 1  "  Life  and  Correspondence  of  Rufus  King  "  (ed.  by  C.  R. 
King),  1,517-518. 

2  Hamilton's  Works,  IV,  536. 

8  "  The  Correspondence  and  Public  Papers  of  John  Jay,"  IV,  2-4. 
4  Gibbs,  I,  135. 


THE   SENATE  217 

such  powers  and  instructions  as  probably  will  produce 
the  desired  effect.  His  nomination  will  come  forward 
this  day  or  to-morrow.  He  is  now  here,  and  has  this 
moment  informed  me  of  his  determination  to  accept 
the  appointment  if  it  shall  be  made.  This,  sir,  will  be 
a  mortifying  movement  to  those  who  have  endeavoured 
by  every  possible  means  to  prevent  a  reconciliation  be 
tween  this  country  and  Great  Britain.  The  British 
instructions  of  the  eighth  January,  which  I  sent  you, 
begin  to  operate  favourably  in  the  West  Indies.  The 
embargo,  I  trust,  will  not  be  continued  beyond  the 
thirty  days  for  which  it  was  laid.  It  ought  not  to 
have  been  laid  at  all." 

The  day  this  letter  was  written,  Washington  sent 
to  the  Senate  the  nomination  of  Jay.  After  a  violent 
debate  of  three  days,1  the  Senate  confirmed  it.  Early 
in  May,  the  envoy  sailed  for  England.  It  is  no  won 
der  that  throughout  the  trying  summer  that  followed, 
and  late  into  the  autumn,  Ellsworth  showed  the  deepest 
anxiety  for  news  of  his  success.  It  is  significant  that 
on  November  19,  the  day  the  treaty  was  signed,  be 
sides  letters  to  Washington  and  to  Edmund  Randolph, 
Secretary  of  State,  Jay  wrote  to  Hamilton,  King,  and 
Ellsworth.  To  each  of  these  three  in  turn,  recogniz 
ing  their  common  interest  in  the  mission,  he  made  a 
kind  of  brief  report.2  The  results  of  the  mission  were 
in  truth  by  no  means  brilliant,  but  they  were  all,  per 
haps,  that  could  reasonably  have  been  expected.  Jay 
had  failed  to  obtain  compensation  for  the  negro  slaves 
carried  off  by  British  troops  after  the  Revolution,  or 
any  agreement  to  stop  the  impressment  of  our  seamen. 

1  "  Life  and  Correspondence  of  Rufus  King,"  I,  521-522. 

2  Jay's  "Correspondence  and  Public  Papers,"  IV,  132-144. 


2l8  OLIVER   ELLSWORTH 

To  obtain  a  slight  measure  of  freedom  of  trade  with 
the  British  West  Indies  he  had  consented  to  humiliat 
ing  and  damaging  conditions.  But  a  date  was  fixed 
for  the  surrender  of  the  Western  posts,  which  the  British 
had  held  ever  since  the  Revolution ;  boundary  disputes 
were  referred  to  commissioners;  another  commission 
was  to  sit  on  claims  for  damages  to  individuals ;  rules 
were  framed  to  govern  all  questions  of  the  right  of 
seizure  at  sea ;  and  we  gained  something  in  the  mat 
ter  of  the  restrictions  on  our  commerce  with  India. 
The  claims  commission  was  doubtless  the  most  impor 
tant  concession  Jay  had  obtained,  for  it  enabled  him  and 
his  friends  to  feel  that  they  had  accomplished  their  prin 
cipal  object,  —  to  avoid  war  without  positive  dishonor. 
But  the  hardest  part  of  the  fight  for  peace  was  still 
ahead.  Ellsworth  had  been  right  in  his  prophecy  that 
the  mission  would  prove  "  a  mortifying  movement " 
to  the  opposition.  The  treaty  did  not  reach  Philadel 
phia  until  the  day  after  the  short  session  of  Congress 
came  to  an  end.  In  June,  the  Senate  was  convened 
in  special  session  to  consider  it.  The  opposition 
senators  fought  it  bitterly.  They  succeeded  in  strik 
ing  out  the  twelfth  article  relating  to  trade  with  the 
West  Indies.  But  on  June  24,  by  a  bare  two-thirds 
majority,  the  rest  was  approved.  A  few  days  later, 
the  substance  of  the  whole  was  revealed  to  the  pub 
lic;  and  at  once,  while  the  President  was  consider 
ing  it,  there  broke  upon  the  administration  quite  the 
most  furious  storm  of  crimination,  slander,  and  abuse 
that  ever  arose  even  in  those  early  years  of  the  party 
system,  when  men  still  treated  political  opponents  as 
enemies  and  traitors  to  the  country.  One  of  those 
who  made  themselves  conspicuous  by  their  violent  op- 


THE   SENATE  219 

position  was  John  Rutledge,  Ellsworth's  associate  in 
many  earlier  labors,  whom  Washington  had  recently 
chosen  to  be  Jay's  successor  on  the  bench  —  a  circum 
stance  that  had  an  important  bearing  on  the  future 
of  Ellsworth  himself. 

There  were  reasons  enough  why  Washington  should 
hesitate  before  he  signed  the  treaty,  and  he  held  it 
seven  weeks  —  a  period  which  gave  the  opposition 
an  ample  opportunity  for  protest.  The  opportunity 
was  not  neglected.  Hamilton,  rising  to  address  a 
public  meeting  in  New  York,  was  driven  from  the 
rostrum  with  stones  and  curses.  Jay  was  burned 
and  hanged  in  effigy,  lampooned  in  the  public 
prints,  denounced  in  public  meetings,  damned  and 
double-damned  in  public  and  in  private.  Washing 
ton  declared,  "  I  have  never  since  I  have  been  in  the 
administration  of  the  government  seen  such  a  crisis." 
The  worst  of  the  business  was  not  known  to  him,  how 
ever,  until  one  day  when  Wolcott,  now  promoted  to  be 
Secretary  of  the  Treasury  in  place  of  Hamilton,  who 
had  resigned,  put  in  his  hands  a  document  which 
seemed  to  show  that  Edmund  Randolph,  Jefferson's 
successor  in  the  State  Department,  had  been  conspiring 
secretly  with  the  minister  of  France,  perhaps  for  pay, 
to  compass  the  defeat  of  the  treaty.  This  shameful 
episode,  which  is  not  even  yet  completely  understood, 
may  possibly  have  induced  Washington  to  decide  at 
once;  and  a  few  days  later,  on  August  15,  he  signed 
the  treaty. 

Meanwhile,  at  his  home  in  Windsor,  Ellsworth  had 
been  pacing  the  hall  in  the  most  intense  anxiety.  For 
several  nights  he  scarcely  slept  at  all.  For  once,  it 
seems,  he  had  misdoubted  Washington's  firmness  and 


220  OLIVER   ELLSWORTH 

courage.  Himself  thoroughly  convinced  of  the  wis 
dom  of  accepting  the  treaty,  he  feared  lest  Washington 
should  bend  before  the  tempest  of  popular  disapproval. 
The  very  day  the  treaty  was  signed,  he  wrote  to  Wol- 
cott :  "  If  the  President  decides  wrong,  or  does  not 
decide  soon,  his  good  fortune  will  forsake  him.  N.  E. 
I  think  is  tolerably  quiet,  and  will  be  more  so,  as  the 
subject  becomes  more  understood.  But  I  am  to  be 
responsible  only  for  Connecticut.  That  E.  R.1  should 
not  act  at  all  is  less  surprising  than  that  J.  R.2  should 

act  like  the  D .     I  wait  for  the  unravelling,  when 

more  is  to  be  known.  .  .  ."  Even  when  he  got  Wol- 
cott's  letter,  telling  him  the  treaty  was  signed,  he  was 
not  content.  August  20,  he  wrote  again :  "  I  am  glad 
the  President  has  done  at  last,  what  I  am  unwilling  to 
believe  he  ever  hesitated  about,  and  the  delay  of  which 
has  not  been  without  hazard  and  some  mischief.  The 
crisis  admits  not  of  the  appearance  of  indecision,  and 
much  less  of  steering  any  course  but  one. 

"  There  is  less  reason  to  be  anxious  for  the  Eastern 
quarter  than  there  was  some  weeks  since.  The  at 
tempt  of  a  few  Lawyers,  taking  their  tone  from  New 
Haven,  to  agitate  the  state,  has  been  unsuccessful, 
and  must  be  abandoned.  Rhode  Island  and  Vermont 
I  apprehend  to  be  out  of  danger,  though  my  informa 
tion  is  not  so  full  as  might  be  wished.  The  current,  I 
believe,  is  turning  in  Massachusetts,  though  you  may 
perhaps  hear  of  some  more  obscure  Town  Meetings. 
The  declarations  of  the  Boston  Merchants  and  the 
President's  letter  to  the  Selectmen  are  good  dampers, 
and  together  with  able  defences  now  circulating,  will 

1  Probably  Edmund  Randolph,  possibly  Edward  Rutledge. 

2  John  Rutledge. 


THE   SENATE  221 

produce  an  effect.  As  I  hear  nothing  from  New 
Hampshire  except  of  the  first  impression  at  Ports 
mouth,  I  infer  that  Brother  Langdon's  argument  and 
explanation,  that  '  'tis  a  damned  thing  made  to  plague 
the  French,'  has  by  repetition  lost  its  force.  This  is 
all  I  can  tell  you  about  New  England.  And  I  very 
much  wish  you,  when  you  have  leisure,  to  tell  me  how 
general  and  how  violent  the  opposition  is  in  all  the 
States  south  of  this,  and  what  effects  are  to  be  ex 
pected  from  it. 

"  It  is  not  certainly  owing  to  laziness,  that  nothing 
more  formal  has  been  here  written  on  the  side  of  the 
Treaty.  We  thought  it  best  to  stand  prepared  for 
defence  if  an  attack  should  be  here  made,  which  has 
not  yet  been  the  case,  and  in  the  meantime  perhaps 
to  scrap  and  squib  a  little,  just  to  keep  the  humour  the 
right  way,  and  to  see  to  the  publishing  of  what  is  well 
written  elsewhere." 

Evidently,  his  whole  heart  was  in  the  business,  and 
he  felt  deeply  his  own  share  of  the  responsibility  for 
it.  He  was  right  to  fear  that  the  danger  from  the 
opposition  was  not  yet  over.  The  House  of  Repre 
sentatives  was  still  to  be  reckoned  with,  for  money 
must  be  appropriated  to  carry  the  treaty  into  effect. 
Throughout  the  whole  of  the  following  winter  at  Phil 
adelphia,  interest  centred  in  the  opposition's  efforts  to 
defeat  the  appropriation  and  the  virtual  claim  of  the 
House  to  a  revisionary  control  over  the  exercise  by 
the  Senate  and  the  President  of  their  right  to  conclude 
treaties.  The  tide  of  national  feeling  and  opinion  was 
near  its  ebb,  and  for  one  reason  or  another  the  strong 
est  men  of  the  strong  government  party  were  passing 
from  the  scene.  On  his  return  from  Europe,  Jay 


222  OLIVER  ELLSWORTH 

resigned  his  place  on  the  bench  to  become  again  the 
governor  of  New  York.  The  cabinet  places  were  al 
ready  given  over  to  second-rate  characters.  At  this 
session  of  Congress,  King,  Cabot,  Strong,  and  Ells 
worth  sat  together  for  the  last  time  in  the  Senate. 
From  the  other  house,  Fisher  Ames,  the  most  brilliant 
orator  in  Congress,  was  also  about  to  retire,  for  a  wast 
ing  disease  had  checked  almost  at  the  outset  a  career 
which  otherwise  would  surely  have  been  long  and 
brilliant.  His  strength  hardly  enabled  him  to  stand 
while  he  poured  out  in  defence  of  the  treaty  a  speech 
of  extraordinary  eloquence  —  the  one  really  great  ora 
tion  of  the  Federalist  period.  Before  the  House  finally 
voted  the  appropriation,  Ellsworth  also  got  an  oppor 
tunity  to  render  one  more  service  to  the  cause  of  peace 
with  England.  The  House  had  asked  the  President 
to  lay  before  it  the  instructions  to  Jay,  and  the  corre 
spondence  and  other  documents  relating  to  the  treaty. 
While  Washington  and  his  cabinet  were  considering 
the  demand,  Ellsworth  was  requested  to  give  his 
opinion,  and  he  drew  up  an  argument  to  show  that 
the  House  had  no  constitutional  right  to  the  docu 
ments. 

This  opinion  was  not  rendered  by  Ellsworth  the 
senator,  but  by  the  Chief  Justice  of  the  United  States. 
His  work  as  a  lawgiver  had  come  to  an  end.  March  8, 
in  a  letter  on  another  subject  to  the  elder  Wolcott,  who 
was  now  governor  of  Connecticut,  he  wrote :  "  It  is,  sir, 
my  duty  to  acquaint  you  that  I  have  with  some  hesita 
tion  accepted  an  appointment  in  the  judiciary  of  the 
United  States,  which  of  course  vacates  my  seat  in  the 
Senate.  This  step  I  hope  will  not  be  regarded  as 
disrespectful  to  a  state  which  I  have  so  long  had 


THE   SENATE  223 

the  honor  to  serve,  and  whose  interests  must  forever 
remain  precious  to  my  heart." 1 

But  before  we  turn  to  Ellsworth  the  Chief  Justice 
we  should  like,  if  it  were  possible,  a  better  acquaint 
ance  with  Ellsworth  the  Senator.  According  to  one 
competent  and  intimate  observer,  the  years  of  his  sena 
torial  service  —  notwithstanding  that  one  of  them  was 
his  fiftieth  —  were  a  period  of  remarkable  growth.  He 
met  the  many  demands  of  his  new  place  with  a  fresh 
access  of  energy  and  a  display  of  gifts  and  powers 
which  surprised  even  his  intimates.  It  was  doubtless 
his  first  colleague,  Johnson,  who  to  the  best  of  Ells 
worth's  early  biographers  made  this  statement.2  It  is 
of  a  piece  with  the  report  of  other  of  his  associates 
within  and  without  the  closed  doors  of  the  Senate.  It 
accords  also  with  the  reasonable  inference  from  the 
multitudinous  activities  recorded  in  the  journals  and 
with  a  tradition  which  may  linger  in  the  Senate  even 
to  the  present  day3  —  a  tradition  that  Ellsworth's  in 
fluence  with  his  fellows  was,  as  Wolcott  said,  "pre 
dominant."  Such  an  estimate  of  his  rank  is  not 
inconsistent  with  his  failure  to  attain  a  wide  celebrity ; 
for  it  frequently  happens  that  the  leaders  in  this  pecul 
iar  chamber,  even  nowadays,  when  its  debates  are  pub 
lished,  are  less  well  known  to  the  public  than  men 
whose  actual  weight  in  legislation  is  but  slight. 
Neither  is  it  inconsistent  with  the  testimony  of 
Maclay.  In  spite  of  all  Maclay's  carping  at  Ellsworth, 
he  conveys  a  distinct  impression  of  a  powerful  intellect 
and  will,  of  a  quite  extraordinary  energy  and  effective- 

1  Gibbs,  I,  306. 

2  Analectic  Magazine,  III,  392. 

3  See  G.  F.  Hoar's  "Autobiography  of  Seventy  Years,"  II,  45. 


224  OLIVER   ELLSWORTH 

ness.  Unlike  the  unknown  commentator  on  Wood's 
manuscript,  he  considered  Ellsworth  eloquent.  "  Els- 
worth,  who  is  a  vastly  better  speaker  than  I  am  " ;  "  he 
explained  everything  with  a  clearness  and  perspicuity 
which  I  seem  quite  incapable  of  " ;  "  Mr.  Elsworth  did 
the  subject  justice " ;  "  Elsworth  is  really  a  man  of 
ability  " ;  "  this  man  has  abilities  " ;  "  all  powerful  and 
eloquent  in  debate  " ;  and  again,  "  Elsworth,  a  man  of 
great  faculties  and  eloquent  in  debate  "  —  such  tributes 
to  a  man  he  was  almost  constantly  opposing  more  than 
outweigh  the  strictures.  There  is  also  an  involuntary 
tribute  in  the  confession  that  once,  under  a  fierce 
attack  from  Ellsworth,  Maclay  himself  fairly  fled  the 
chamber.  The  strictures,  however,  are  certainly 
severe.  Bored  by  an  excessively  long  and  tedious 
argument,  he  proposes  "  endless  Ellsworth  "  for  a  nick 
name.  Of  Ellsworth's  obstinacy  there  is  constant 
complaint,  and  he  is  also  set  down  as  "  the  most  con 
ceited  man  in  the  world."  Worse  still,  Maclay  could 
not  believe  in  his  integrity.  "  It  is  really  surprising  to 
me  the  pains  he  will  display  to  varnish  over  villainy 
and  to  give  roguery  effect  without  avowed  license." 
"  He  will  absolutely  say  anything,  nor  can  I  believe  he 
has  a  particle  of  principle  in  his  composition."  He  is 
able,  "  but  abilities  without  candor  and  integrity  are 
the  characteristics  of  the  devil."  "  I  can  in  truth  pro 
nounce  him  one  of  the  most  uncandid  men  I  ever 
knew  possessing  such  abilities.  I  am  often  led  to 
doubt  whether  he  has  a  particle  of  integrity :  perhaps 
such  a  quality  is  useless  in  Connecticut."  But  fortu 
nately  these  severe  animadversions  are  usually  accom 
panied  with  a  recital  of  the  incidents  which  provoked 
them ;  and  these  are  such  passages  as  not  infrequently 


THE   SENATE  225 

occur  between  opponents  heated  in  debate.  On  the 
particular  occasion  when  Maclay  was  driven  before 
the  blast  of  Ellsworth's  invective,  he  returned  to 
the  charge,  with  fresh  ammunition  gathered  from  the 
other's  record  in  the  old  Congress,  and  cited  one  of 
the  many  reports  signed  by  Ellsworth,  Madison,  and 
Hamilton.  There  follows  an  amusing  and  very  human 
picture  of  the  effect  of  his  retort :  "  Elsworth  took  a 
great  deal  of  snuff  about  this  time.  He  mumped, 
and  seemed  to  chew  the  cud  of  vexation.  But  he 
affected  not  to  hear  me,  and  indeed,  they  were  all  in 
knots,  talking  and  whispering.  Mr.  Adams  talked 
with  Otis  (the  secretary)  according  to  custom.  ...  I 
am  too  sparing ;  I  should  have  read  that  part  of  the 
report  with  their  names." 

Aaron  Burr  was  another  senator  who  must  have 
seen  much  of  Ellsworth,  for  they  served  together  on 
many  committees.  They  were,  apparently,  leaders  of 
the  opposing  sides  in  the  Senate  on  party  questions, 
as  in  the  bitter  fight,  sectional  as  well  as  partisan,  that 
arose  over  the  act  to  fix  the  ratio  of  representation  in 
the  House  after  the  first  census  had  been  taken.1  In 
all  probability,  therefore,  Burr  was  an  unfriendly  critic, 
and  we  know  how  he  could  hate  an  adversary.  Yet 
he,  too,  paid  tribute  to  the  other's  formidable  strength. 
"  If,"  he  said  once,  "  Ellsworth  had  happened  to  spell 
the  name  of  the  Deity  with  two  d's,  it  would  have  taken 
the  Senate  three  weeks  to  expunge  the  superfluous 
letter." 2  Another  political  opponent  who,  though  not 

1  Senate  Journals,  2d  Cong.,  ist  Sess.,  42,  51,  60-61,  145,  152,  159,  162. 

2  "Old  Time  Notables,"  by  John  Blair  Linn.     This  writer  remarks: 
"The  ablest  advocate  of  the  administration,  Oliver  Ellsworth  of  Conn., 
on  account  of  his  great  ability  and  efficiency  in  the  conduct  of  business, 
was  yielded  precedence  in  the  Federal  ranks  in  the  Senate." 

Q 


226  OLIVER   ELLSWORTH 

a  senator,  might  be  supposed  to  have  known  Ellsworth 
well,  was  Madison.  But  in  the  letter  which  he 
wrote  to  Wood,  long  after  the  death  of  Ellsworth,  he 
said  that  he  had  but  a  limited  acquaintance  with  the 
Connecticut  senator,  and  that  no  epistolary  correspond 
ence  ever  passed  between  them.  The  letter  goes  on : 
"  As  we  happened  to  be  thrown  but  little  into  the 
familiar  situations  which  develop  the  features  of  per 
sonal  and  social  character,  I  can  say  nothing  particular 
as  to  either  —  certainly  nothing  that  would  be  unfavor 
able.  Of  his  public  character  I  may  say,  that  I  always 
regarded  his  talents  as  of  a  high  order  and  that  they 
were  generally  so  regarded.  As  a  speaker  his  reason 
ing  was  clear  and  close,  and  delivered  in  a  style  and 
tone  which  rendered  it  emphatic  and  impressive.  In 
the  convention  which  framed  the  Constitution  of  the 
United  States,  he  bore  an  interesting  part,  and  signed 
the  instrument  in  its  final  shape,1  with  the  cordiality 
verified  by  the  support  he  gave  to  its  ratification. 
Whilst  we  were  contemporaries  in  the  early  sessions 
of  Congress,  he  in  the  Senate  and  I  in  the  House  of 
Representatives,  it  was  well  understood  that  he  was  an 
able  and  operative  member."2 

It  is  not  a  very  warm  tribute;  but  Madison  was 
always  discriminating  in  his  encomiums.  Had  he  and 
Ellsworth  remained  of  the  same  party,  it  is  likely  that 
he  would  have  had  more  than  hearsay  to  tell  concern 
ing  the  other's  work  in  the  Senate.  It  is  not  unreason 
able  to  suppose  that  some  sectional  feeling  may  also 
have  contributed  to  keep  them  apart.  For  we  know 

1  A  singular  mistake  for  Madison  to  make ;  but  at  this  time  (1836)  he 
was  a  very  old  man,  close  to  his  end. 

2  «  Letters  and  Other  Writings  of  Madison,"  IV,  428. 


THE   SENATE  227 

that  in  this  period  sectional  feeling  ran  very  high. 
Madison  was  consorting  more  and  more  exclusively 
with  men  of  his  own  party  and  of  the  Southern  states ; 
and  the  only  picture  we  have  of  Ellsworth  in  any 
particular  social  circle  at  Philadelphia  while  he  was  a 
senator  associates  him  only  with  other  New  England 
characters.1  There  is  no  record  of  his  taking  part  in 
the  fierce  debate  that  arose  over  the  Quaker  anti- 
slavery  petition  to  the  first  Congress,  nor  can  any 
thing  of  a  general  nature  be  positively  said  about  his 
relations  with  Southerners.  But  he  felt,  as  we  have 
seen,  that  the  debts  of  the  South  were  a  main  source 
of  friction  with  England.  There  is  also  a  story  that 
once,  in  his  vehement  advocacy  of  some  measure  in 
the  Senate,  he  much  offended  that  well-named  senator, 
Gunn  of  Georgia,  who  threatened  to  call  him  out; 
but  that  certain  other  Georgians  in  Congress,  sympa 
thizing  with  Ellsworth,  and  knowing  that  he  could  not 
conscientiously  fight  a  duel,  offered  to  take  his  place, 
and  Senator  Gunn  desisted.  These  facts  are  not  enough 
to  show  that  Ellsworth  felt  as  some  other  Federalists 
did  —  his  friend,  Cabot,  for  instance  —  concerning  the 
South. 

But  on  this  point  a  curious  bit  of  testimony  has 
lately  come  to  light.  In  the  spring  of  1794,  a  time, 
as  we  have  seen,  of  much  perturbation  over  malice 
domestic  and  much  apprehension  of  foreign  levies, 
John  Taylor  of  Virginia,  better  known  as  John 
Taylor  of  Caroline,  was  perhaps  the  most  extreme 

1  "  When  I  mention  such  names  as  Ellsworth,  Ames,  Griswold,  Goodrich, 
Tracy,  £c.,  you  may  imagine  what  a  rich  and  intellectual  society  it  was." 
From  a  letter  of  Judge  Joseph  Hopkinson  of  Philadelphia,  quoted  in  Gibbs, 
I,  162-163.  Hopkinson  indicates  that  this  circle  met  oftenest  at  his  own 
house  and  Wolcott's. 


228  OLIVER   ELLSWORTH 

representative  in  the  Senate  of  the  Southern,  the 
state-rights,  the  anti-Federalist,  the  anti-English  sen 
timent  A  paper  in  his  handwriting,  dated  May 
1 1,  prepared  for  James  Madison,  preserved  among 
the  Madison  papers,  and  now,  after  more  than  a 
century,  given  to  the  public,1  records  an  interesting 
interview  which  occurred  on  May  8  or  9  between 
Taylor  on  the  one  hand  and  King  and  Ellsworth, 
Federalist  leaders,  on  the  other.  Taylor,  it  seems, 
had  been  violent  in  his  opposition  to  the  measures  of 
the  Federalists,  particularly  to  their  course  with  the 
debt,  to  the  setting  up  of  the  bank,  and  to  the  proposal 
to  send  an  envoy  to  England.  A  few  days  before,  he 
had  moved  with  a  bitter  speech  to  sequester  all  British 
debts.  Defeated,  he  had  declared  that  he  meant  to 
resign.  Matters  were  in  this  train  when  King  invited 
him  into  a  committee  room  and  there  began  to  talk  to 
him  about  a  dissolution  of  the  Union.  According  to 
Taylor's  memorandum,  King  said  that  the  Union  simply 
could  not  continue.  The  East  and  the  South  could 
not  agree,  and  the  South  was  clogging  every  movement 
of  the  government.  When  the  two  Federalist  senators 
from  South  Carolina  should  give  way  to  anti-Federal 
ists,  Southern  interests  would  prevail,  and  the  East 
would  not  submit.  Better,  then,  peaceably  dissolve  at 
once.  Ellsworth  coming  in  about  this  time,  apparently 
by  accident,  —  though  Taylor  thought  from  concert,  — 
King,  protesting  that  he  had  not  mentioned  the  matter 
to  him  before,  repeated  what  he  had  said,  and  Ellsworth 
concurred.  "  K.  was  throughout  the  chief  spokesman, 

1  "  Disunion  Sentiment  in  Congress  in  1794.  A  Confidential  Memoran 
dum  hitherto  unpublished,  written  by  John  Taylor  of  Caroline  for  James 
Madison."  Edited  by  Gaillard  Hunt,  Washington,  1905. 


THE   SENATE  229 

tho'  E.  occasionally  joined  him,  and  appeared  entirely 
to  concur  with  him."  Taylor,  taken  aback,  argued  for 
a  plan  to  pay  the  debt  by  reducing  army  expenses  and 
selling  Western  lands,  as  in  his  judgment  the  debt 
was  the  main  source  of  the  sectional  divisions.  But 
to  this  King  would  not  agree.  There  were,  he 
thought,  other  essential  subjects  of  difference.  South 
and  North  would  never  think  alike.  He  was  par 
ticularly  concerned  about  the  course  of  Madison, 
believing  him  to  harbor  some  "  deep  and  mischievous 
design."  He  ended  as  he  began.  Taylor,  after  reflec 
tion,  was  quite  convinced  that  here  was  a  fully  matured 
plot  to  break  up  the  Union.  The  words  and  the 
countenances  of  King  and  Ellsworth  forbade  him  to 
doubt  it.  More  still :  he  feared  that  at  the  bottom  of 
the  business  some  British  interest  lurked.  Perhaps 
the  full  plan  was,  to  dissolve  first,  then  bring  the  East 
and  England  together,  and  finally,  by  this  union,  force 
the  South  to  terms. 

But  on  the  memorandum  of  these  facts  and  opinions 
which  Taylor  had  written  out  for  Madison's  benefit, 
Madison  himself  merely  wrote,  "  The  language  of  K. 
and  E.  probably  in  terrorem" \  and  everything  we 
know  of  Ellsworth  is  in  keeping  with  this  interpre 
tation  of  the  incident.  He  was  a  bold  as  well  as  a 
shrewd  politician,  not  easily  frightened,  never  inclined 
to  overrate  the  strength  of  his  opponents.  So  much 
is  amply  shown  by  his  course  in  the  Constitutional 
Convention,  as  well  as  in  the  Senate.  Quite  likely,  he 
and  his  associates  felt  that  it  was  time  to  give  the 
violent  anti-Federalists  a  bit  of  tit-for-tat.  It  all 
looks  very  like  the  present-day  game  of  politics  as 
it  is  played  behind  the  scenes  —  and  not  unlike  a 


230  OLIVER   ELLSWORTH 

certain  thoroughly  American  game  at  cards.  It  does 
not  convince  one  that  Ellsworth  and  King,  who  were 
working  night  and  day  to  strengthen  the  Union,  had 
any  real  design  to  break  it  in  two,  —  and  leave  George 
Washington  in  the  other  half  ! l 

The  estimates  of  Ellsworth  by  the  members  of  his 
own  group  of  Federalist  leaders  are  naturally  higher 
than  those  of  even  the  more  magnanimous  Republi 
cans.  The  letters  of  King  and  Cabot  reflect  the 
intimacy  of  the  ruling  coterie  in  the  Senate.  Jay  also 
wrote  of  him  in  terms  of  complete  respect  and  of  strong- 
friendship.  Allusions  to  his  character  in  the  letters 
of  other  Federalists  are  nearly  always  commendatory. 
"  He  is  a  good  man,  and  a  very  able  one,"  wrote  Con 
gressman  Jeremiah  Smith  of  New  Hampshire,  on 
hearing  of  his  appointment  to  the  bench ;  "  a  man 
with  whom  I  am  well  acquainted,  and  greatly  esteem." 2 
About  the  time  of  his  retirement  from  the  Senate, 
Fisher  Ames  praised  him  in  signal  fashion.  Christo 
pher  Gore,  writing  from  London,  had  inquired  earnestly 
about  the  leadership  of  Congress  when  Ames  himself 
should  be  gone  ;  and  Ames  replied  : 3  "  As  to  my  ab 
sence  from  the  House,  the  loss  will  be  nothing  as  to 

1  Mr.  Gaillard  Hunt,  editor  of  the  document,  and  biographer  of  Madi 
son,  thinks  that  "  Madison  was  right."     But  he  also  thinks  that  King  and 
Ellsworth  were  seriously  contemplating  disunion,  and  points  to  their  inti 
macy  with  Cabot  and  Strong,  who  took  later,  during  the  War  of  1812,  a 
course  that  caused  them  to  be  charged  with  disaffection  to  the  government. 

2  Elsewhere,  Smith  tells  a  story  of  a  Philadelphia  bookseller  who  had 
beguiled  him  and  others  into  making  purchases  by  flattery.    The  man  would 
watch  a  possible  customer  turning  over  the  leaves  of  a  book  and  approach 
ing  with  the  remark,  "  Sir,  I  perceive  you  are  a  man  of  letters,"  proceed  to 
recommend  his  wares.     Smith  saw  him  try  this  trick  on  Ellsworth,  but  it 
failed.     "Life  of  Jeremiah  Smith,"  by  John  H.  Morrison,  91,  393. 

8  Oct.  5,  1796,  Works,  I,  203. 


THE    SENATE  231 

leading.  I  never  had  any  talent  in  that  way,  and  I 
have  not  been  the  dupe  of  such  a  belief.  Few  men 
are  fit  for  it.  Ellsworth,  Hamilton,  King,  and  per 
haps  John  Marshall,  would  lead  well,  especially  Ells 
worth,  — 

.  .  .  quo  non  praestantior  alter 
Aere  ciere  viros,  martemque  accendere  cantu. 

"  His  want  of  a  certain  fire  that  H.  and  K.  have 
would  make  him  the  fitter  as  a  dux  gregis.  The 
House  will  be  like  sheep  without  a  shepherd.  I 
never  was  more  than  a  shepherd's  dog."  Rather  curi 
ously,  John  Adams  takes  much  the  same  line  in  prais 
ing  this  senator  translated  to  the  bench.  They  two 
had  not  always  escaped  friction  in  their  intercourse 
in  the  Senate  chamber;  but  Adams,  who  from  his 
President's  chair  had  for  seven  years  beheld  Ellsworth 
dealing  with  all  manner  of  public  questions,  was  almost 
bitter  with  Washington  for  depriving  him  of  such  a 
supporter.  He  wrote  in  1813  that  at  the  time  of  the 
appointment  the  opposition  had  long  been  making 
plans  to  explode  Washington,  sacrifice  Adams,  and 
bring  in  Jefferson,  and  that  Washington  understood 
this.  "  But  what  had  he  done  before  he  left  the  chair  ? 
Ellsworth,  the  firmest  pillar  of  his  whole  administra 
tion  in  the  Senate,  he  had  promoted  to  the  high  office 
of  Chief  Justice  of  the  United  States;  King  he  had 
sent  ambassador  to  London  ;  Strong  was  pleased  to 
resign,  as  well  as  Cabot ;  Hamilton  had  fled  from  his 
unpopularity  to  the  bar  in  New  York ;  Ames  to  that 
in  Boston  ;  and  Murry  was  ordered  by  Washington  to 
Holland.  The  utmost  efforts  of  Ellsworth,  King,  and 
Strong  in  the  Senate  had  scarcely  been  sufficient  to 


232  OLIVER   ELLSWORTH 

hold  the  head  of  Washington's  administration  above 
water  during  the  whole  of  his  eight  years."  And 
after  men  of  this  stamp,  Adams  asks  in  wrath,  "  What 
was  my  support  in  the  Senate?  Mr.  Goodhue  of 
Massachusetts.  .  .  .  Had  Ellsworth,  Strong,  and  King 
been  there,  the  world  would  never  have  heard  of  the 
disgraceful  cabals  and  unconstitutional  proceedings  of 
that  body." 

Here  were  indeed  egregious  calls  for  Hector.  That 
in  such  a  state  of  parties  Washington  decided  to  take 
Ellsworth  for  the  bench  may  show  that  he  was  himself 
less  of  a  partisan  than  some  of  his  biographers  would 
have  us  believe  ;  but  it  also  shows  that  he,  too,  had 
noted  Ellsworth  for  "a  good  man."  There  is  no 
evidence  that  Ellsworth  was  one  of  the  very  few  who 
ever  were  on  terms  of  anything  like  intimacy  with 
Washington,  who  was  himself  hardly  the  sort  of  South 
erner  to  thaw  the  ice  of  a  New  Englander's  reserve. 
But  Ellsworth  did  have  Washington's  friendship  and 
esteem.  They  had  known  each  other  for  ten  years  at 
least,  probably  for  twenty,  and  Washington  had  had 
good  opportunities  to  judge  the  other  for  himself.  At 
least  once,  he  had  been  Ellsworth's  guest  at  Windsor. 
October  21,  1789,  being  then  on  his  tour  of  New  Eng 
land,  he  wrote  in  his  diary:  "  By  promise  was  to  have 
breakfasted  at  Mr.  Ellsworth's  at  Windsor  on  the  way 
to  Springfield,  but  the  morning  proving  very  wet  and 
the  rain  not  ceasing  until  ten  o'clock,  I  did  not  set  out 1 
till  half  after  that  hour.  I  called  however  on  Mr.  E. 
and  stayed  there  near  an  hour."2  That,  we  may  be 

1  From  Hartford. 

2  The  Diary  of  George  Washington  from  1789  to  1791  (ed.  by  Benson 
J.  Lossing),  27. 


THE   SENATE  233 

sure,  was  quite  the  greatest  hour  in  the  history  of 
Windsor  and  of  the  Ellsworth  household.  Had  the 
New  England  tour  served  no  political  object  whatso 
ever,  many  an  old  New  England  house  would  still  be 
richer  by  a  priceless  association.  The  homes  Wash 
ington  visited  were  thenceforth  forever  distinguished, 
and  with  a  distinction  not  less  than  that  the  visitations 
of  a  monarch  confer  upon  the  seats  of  his  subjects. 
It  were  no  mean  superstition  to  hold  that  a  child 
born  in  a  house  across  whose  threshold  that  great 
figure  had  once  passed  could  never  be  false  to  his 
country  or  heedless  of  a  call  of  patriotism. 

Tradition  has  generously  lengthened  out,  and  em 
bellished  with  incidents  of  an  old-fashioned,  patriotic 
flavor,  the  single  hour  of  Washington  at  Elmwood. 
There  is  the  story  of  the  errand  of  one  of  Ellsworth's 
young  sons  to  the  Wadsworth  Mansion  at  Hartford, 
to  present  the  invitation;  of  his  trepidation  at  the 
thought  of  facing  the  greatest  man  in  the  world ;  and 
of  his  surprise,  relief,  and  disappointment  to  find  only 
a  quiet  old  gentleman,  dressed  very  much  like  his 
father.  Hardly  reconcilable  with  this  is  the  story  of  an 
aide-de-camp  of  Washington  who  came  to  Elmwood 
to  announce  the  visit,  mistook  Mistress  Ellsworth,  who 
answered  his  knock  herself,  for  a  servant,  and  never 
recognized  her  when  he  came  again  and  saw  her 
dressed  for  company.1  And  there  is  the  story  of 
Washington's  taking  on  his  knees  the  youngest  twain 
of  the  Ellsworth  children  and  singing  them  the  ancient 

1  Both  stories  seem  inconsistent  with  an  entry  in  Washington's  diary 
for  the  day  before  the  visit.  "  Tuesday,  2oth.  After  breakfast,  accom 
panied  by  Col°.  Wadsworth,  Mr.  Ellsworth  and  Col°.  Jesse  Root,  I 
viewed  the  woollen  manufactory  at  this  place  (Hartford),  which  seems  to 
be  going  on  with  spirit."  Diary  of  George  Washington. 


234  OLIVER   ELLSWORTH 

ballad  of  the  Derby  Ram.  If  Ellsworth's  hard-work 
ing  statesmanship  had  been  compensated  with  more 
such  pleasant  interludes,  his  biographer  would  will 
ingly  turn  antiquary  to  learn  the  details  of  them. 

There  is  Washington's  own  hand  to  prove  that  he 
felt  a  real  affection  for  this  strong  New  England  prop 
of  his  administration.  The  day  before  he  left  the 
seat  of  government  to  go  into  his  final  retirement,  he 

wrote : 

"PHILADELPHIA,  8th  Mar.  1797. 

"  DEAR  SIR  :  Before  I  leave  this  City,  which  will  be 
within  less  than  twenty-four  hours,  permit  me,  in 
acknowledging  the  receipt  of  your  kind  and  affec 
tionate  note  of  the  6th,  to  offer  you  the  thanks  of  a 
grateful  heart  for  the  sentiments  you  have  expressed 
in  my  favour,  and  for  those  attentions  with  which  you 
have  always  honored  me.  In  return,  I  pray  you  to 
accept  all  my  good  wishes  for  the  perfect  restoration  of 
your  health,  and  for  all  the  happiness  this  life  can  afford. 

"  As  your  official  duty  will  necessarily  call  you  to 
the  Southward,  I  will  take  the  liberty  of  adding,  that 
it  will  always  give  me  pleasure  to  see  you  at  Mount 
Vernon  as  you  pass  and  repass.  With  unfeigned 
esteem  and  regard  in  whc  Mrs.  Washington  joins  me 
"  I  am  always  —  and  affectionately  yours, 

"  G°.  WASHINGTON. 

"OLivR  ELLSWORTH,  ESQR.,  Chief  Justice" 

But  the  intervals  of  work  in  Ellsworth's  life  were 
not  all  filled  with  such  intercourse  or  such  exchanges. 
In  this  letter  to  his  wife,  one  sees  another  side  of  his 
high  public  employments  : 1 

1  Dated  Philadelphia,  Feb.  26,  1796.  Original  in  the  possession  of  Mrs. 
Henry  E.  Taintor  of  Hartford. 


THE   SENATE  235 

"  As  to  amusements  this  winter,  the  city  is  full 
of  them,  but  I  participate  in  none.  My  pleasure 
consists  in  doing  the  business  of  the  day,  and,  when 
I  sit  alone  in  my  chamber  in  the  evening,  in  think 
ing  of  my  family,  to  all  of  whom  I  always  say 
something. 

"  Olle  I  suppose  is  gone  back  to  College,  and  Martin 
I  suppose  is  getting  ready  to  go  as  fast  as  he  can. 
Daddy  wants  to  see  all  his  little  children  very  much, 
and  he  wishes  mamma  to  let  them  have  one  plate  of 
plums  now  every  week  until  he  comes  home,  and  pay 
for  them  with  Daddy's  money." 

Something  like  commiseration  mingles  with  our  re 
spect  for  this  New  England  nature,  for  this  tireless 
public  servant,  pursuing  so  steadfastly,  and  with  so 
little  relief,  his  hard,  masculine  tasks.  Not,  however, 
that  Ellsworth  was  of  an  unsocial  disposition,  or 
habitually  denied  himself  social  recreations,  or  that 
Philadelphia  lacked  good  society.  It  was  a  lively  and 
pleasant  little  capital ;  the  men  from  the  frontiers  and 
the  backwoods  districts  probably  thought  it  a  veri 
table  Paris.  But  Ellsworth  could  never  enjoy  social 
or  other  pleasures  until  he  had  mastered  whatever 
problem  he  had  on  his  mind.  His  standard  of  thor 
oughness  was  unusual,  his  absorption  in  his  work 
phenomenal.  In  his  brief  intervals  of  leisure  he  found 
children  the  best  resource  for  amusement  and  refresh 
ment  —  certainly  a  happy  preference.  His  oldest 
daughter,  "  Nabby,"  accompanied  him  to  New  York 
for  the  winter  session  of  1 790,  and  perhaps  also  to  the 
first  session  in  Philadelphia ;  but  sometimes  he  was 
hard  put  to  it  for  the  companionship  he  liked  best. 
One  session,  he  wrote  to  his  wife : 


236  OLIVER   ELLSWORTH 

"  The  family  in  which  I  live  have  no  white  children. 
But  I  often  amuse  myself  with  a  colored  one  about  the 
size  of  our  little  daughter,  who  peeks  into  my  door 
every  now  and  then,  with  a  long  story,  which  I  can 
not  more  than  half  understand.1  Our  two  sons  I 
sometimes  fancy  that  I  pick  out  among  the  little 
boys  playing  at  marbles  in  the  street.  Our  eldest 
daughter  is,  I  trust,  alternately  employed  between 
her  book  and  her  wheel.  You  must  teach  her  what 
is  useful,  the  world  will  teach  her  enough  of  what  is 
not.  The  nameless  little  one  I  am  hardly  enough 
acquainted  with  to  have  much  idea  of;  yet  I  think 
she  occupies  a  corner  of  my  heart.  .  .  . " 2  Of 
another  child,  which  died  in  infancy,  he  also  speaks. 
"  He  who  bore  your  countenance  and  my  name  — 
the  world  has  never  been  the  same  to  me  since  his 
death." 8 

His  personal  and  family  relations  were  all  appar 
ently  of  this  American  quality  —  a  trifle  stiff  and 
formal,  for  the  age  was  formal,  but  simple,  genuine, 
sincere.  He  writes  from  Philadelphia  to  "  Nabby  " : 

"  Miss  Wadsworth  enjoys  high  health,  which  she 
takes  much  pains  to  preserve,  walking  frequently 
three  or  four  miles  before  breakfast.  The  rest  of 
the  time  she  spends  much  as  you  spend  yours  —  in 
seeing  and  being  seen.  She  has  some  advantages  — 
a  richer  and  more  fashionable  father,  and  perhaps  a 

1  "  On  one  of  his  visits  at   New   Haven  the  Judge  (Ellsworth)  met  a 
little  colored  girl  and  patted  it  on  its  head  and  said,  « Just  as  happy  as  any 
child  in  the  neighborhood  now,  but  by  and  bye' — then  shook  his  head 
and  passed  on."     From  a  letter  of  Samuel  Hoar,  son-in-law  of  Roger  Sher 
man,  quoted  in  Jackson  Ms. 

2  Quoted,  without  date,  in  "National  Portrait  Gallery"  (1839),  Vol.  IV> 
sketch  of  Ellsworth.  8  Ibid. 


THE   SENATE  237 

fonder  one,  tho'  that  is  more  than  I  admit,  notwith 
standing  she  gets  a  kiss  or  two  from  him  every  time 
he  comes  in  and  goes  out." 

He  lived  at  a  time  when  people  were  given  to 
writing  letters,  and  extremely  long  letters  at  that. 
Postal  charges  were  too  high  for  sending  mere  notes 
by  mail.  Ellsworth's  friend,  Cabot,  for  instance,  was  in 
cessantly  favoring  his  correspondents  with  reams  of  po 
litical  comment  and  prophecy  and  lamentations.  Fisher 
Ames  wrote  even  more  letters  than  Cabot,  though  he 
cut  them  shorter,  and  made  them  much  more  read 
able.  But  not  only  were  Ellsworth's  political  epistles 
marvels  of  condensation ;  if  in  private  correspondence 
brevity  were  a  model  quality,  his  letters  to  his  friends 
and  his  family  would  be  models  also.  The  palm  be 
longs  to  a  missive  that  came  to  his  wife  at  Windsor 
when  she  had  grown  anxious  over  a  silence  longer 
than  was  usual  even  with  him.  She  adjusted  her 
spectacles,  opened  the  packet,  and  read : 
"  One  week  and  then 

"OLIVER  ELLSWORTH." 2 

1  Copied  by  Mr.  W.  Irving  Vinal  from  original  in  possession  of  Mrs. 
Waldo  Hutchins. 

2  Jackson  Ms. 


CHAPTER  VI 

THE   SUPREME  COURT 

ELLSWORTH'S  commission  as  chief  justice  bore  date 
March  4,  1 796.  Four  days  later  he  took  his  seat  on 
the  bench  of  the  Supreme  Court,  and  within  a  month, 
the  court  adjourning,  he  sailed  for  Savannah  to  go 
upon  the  southern  circuit.  He  held  his  commission 
until  November,  iSoo;1  but  his  actual  service  lasted 
only  until  the  autumn  of  1799  —  about  three  years 
and  a  half. 

The  appointment  came  as  a  surprise  to  many  of  his 
contemporaries,  and  perhaps  also  to  him.  In  the  sum 
mer  of  1795,  when  Washington  appointed  Rutledge 
to  succeed  Jay,  Congress  was  not  in  session ;  but 
the  leading  Federalists  soon  showed  that  they  were 
highly  vexed  at  the  President's  choice.  Rutledge 
himself  had  been  accounted  a  Federalist,  and  they 
could  not  condone  his  onslaught  on  the  Jay  treaty. 
Ellsworth's  reference  to  the  matter  in  his  letter  to 
Wolcott 2  was  exceedingly  mild  in  comparison  with 
most  of  the  Federalist  comment.  Some  felt  that 
Washington,  when  he  read  Rutledge 's  speech  on  the 
treaty,  ought  to  have  withheld  the  promised  commis 
sion.  The  President  rose  easily  above  that  low  level 
of  partisanship,  and  Rutledge  received  his  commission 
and  presided  over  the  Supreme  Court  at  the  August 
term.  But  the  Senate,  when  it  met  in  December, 

1  Carson's  "History  of  the  Supreme  Court,"  1, 191.  2  Ante,  p.  220. 

238 


THE   SUPREME   COURT  239 

would  not  ignore  partisan  considerations.  It  refused 
to  confirm  the  nomination,  and  solely  for  political  rea 
sons.  However,  there  very  soon  came  to  light  a  quite 
sufficient  reason  why  Rutledge  should  not  have  the 
place.  Letters  from  South  Carolina  brought  the 
painful  news  that  his  mind  had  failed  him.  He  was, 
in  fact,  little  better  than  a  maniac.  Once,  a  year  or 
two  later,  the  cloud  seemed  for  a  little  while  to  have 
lifted ; 1  but  the  great  Southern  patriot  was  never  again 
fit  for  any  public  service. 

Before  Washington  decided  to  take  Ellsworth  from 
the  Senate,  a  number  of  other  names  were  canvassed. 
Among  the  men  considered  for  the  place  were  at  least 
three  of  the  associate  justices,  and  one  of  them  was 
actually  appointed.  One  day,  at  a  state  dinner,  as 
the  guests  were  being  seated,  Washington  bowed  to 
Mr.  Justice  Gushing  of  Massachusetts,  and  said,  "  The 
Chief  Justice  of  the  United  States  will  take  the  seat 
at  my  right " ;  and  the  nomination  of  Cushing,  sent 
the  next  day  to  the  Senate,  was  readily  confirmed. 
But  the  modest  justice  declined  the  promotion.2  His 
associate,  Iredell,  regretted  his  refusal,  feeling  that  it 
would  now  be  necessary  to  pass  over  Justices  Wilson 
and  Chase  in  order  to  obtain  a  proper  character.8  On 
March  4,  Iredell  wrote  to  his  wife,  "  I  have  this  mo 
ment  read  in  the  newspaper,  that  Mr.  Ellsworth  is 
nominated  our  Chief  Justice,  in  consequence  of  which 
I  think  it  not  unlikely  that  Wilson  will  resign."  Ire- 

1  Griffith  J.  McRee,  "Life  and  Correspondence  of  James  Iredell,"   II, 
527-528. 

2  Perhaps  he  felt  that  his  health  forbade  him  to  accept.     Justice  Iredell 
had  written  to  his  wife  two  years  before  that  Cushing  had  a  cancer  on  his 
lip.     Ibid.,  441. 

8  Iredell  to  Johnston,  ibid.)  462. 


240  OLIVER   ELLSWORTH 

dell  himself  had  been  mentioned,  but  a  few  weeks 
later  he  wrote:  "Whatever  other  chance  I  might 
have  had,  there  could  have  been  no  propriety  in  pass 
ing  by  Judge  Wilson  to  come  at  me.  The  gentleman 
appointed  I  believe  will  fill  the  office  extremely  well. 
He  is  a  man  of  an  excellent  understanding,  and  a 
man  of  business."1  Here,  perhaps,  is  a  hint  of  the 
true  reason  why  the  President,  to  the  disappointment 
of  Adams  and  other  Federalists,  turned  to  the  Senate 
for  the  new  Chief  Justice.  To  Wilson,  notwithstand 
ing  his  acknowledged  eminence  for  learning  and  abil 
ity,  there  were,  probably,  insuperable  objections.  He 
was  already  involved  in  those  speculations  which  in 
a  few  months  ruined  him  completely.  In  1798,  a 
bankrupt,  and  in  imminent  danger  of  the  debtor's 
prison,  he  took  refuge  at  Iredell's  home  in  North 
Carolina,  and  there,  utterly  broken  by  his  shame  and 
his  misfortunes,  he  died. 

Of  Ellsworth's  associates  on  the  bench,  Wilson  was 
probably,  on  the  whole,  the  most  highly  endowed ;  but 
they  were  all  men  of  force.  Cushing,  who  had  been 
Chief  Justice  of  Massachusetts,  who  in  fact  had  spent 
nearly  all  his  life  in  different  judicial  stations,  was 
entirely  worthy  of  the  honor  Washington  had  offered 
him.  James  Iredell,  English  by  birth,  Irish  by  de 
scent,  had  done  good  service  in  winning  over  North 
Carolina  to  the  Union.  He  was  an  excellent  lawyer, 
and  a  man  of  fine  and  amiable  character.  His  pub 
lished  letters,  which  are  the  chief  source  of  our  knowl 
edge  of  what  it  meant  to  be  a  member  of  the  Supreme 
Court  in  its  early  days,  strongly  commend  him  to  one's 
liking  and  respect.  The  fourth  justice  in  the  order 

1  "  Life  and  Correspondence  of  James  Iredell,"  II,  463,  465. 


THE   SUPREME   COURT  241 

of  seniority  was  William  Paterson,  Ellsworth's  old 
associate  of  the  Cliosophic  Society  and  the  Constitu 
tional  Convention.  The  fifth  was  Samuel  Chase  of 
Maryland,  able  and  eloquent,  but  self-assertive  and 
often  overbearing.  Only  two  changes  occurred  while 
Ellsworth  presided  over  the  court.  Bushrod  Wash 
ington  succeeded  Wilson;  and  Iredell  died  in  Octo 
ber,  1799.  But  before  Iredell's  successor  appeared 
on  the  bench  Ellsworth  was  elsewhere  and  otherwise 
employed. 

There  is  an  impression  —  chiefly  due,  perhaps,  to 
Jay's  resignation,  and  to  his  discontented  utterances 
about  the  judiciary  —  that  at  this  early  period  it  was 
not  thought  a  very  high  distinction  to  be  a  member  of 
the  Supreme  Court,  or  even  to  be  the  head  of  it.  It 
is  true  that  certain  eminent  public  men  did  prefer  the 
highest  places  in  the  state  governments  to  any  but  the 
highest  in  the  federal  establishment.  It  is  true,  also, 
that  in  all  the  earlier  appointments  of  chief  justices 
the  office  sought  the  man,  and  at  least  twice  failed  to 
win  him.  But  Cushing,  who  declined  it  in  1796, 
remained  an  associate  justice;  and  Jay,  who  in  1800 
refused  a  reappointment,  seems  to  have  stood  almost 
alone  in  his  opinion  that  the  judiciary  needed  a  com 
plete  reorganization  to  give  it  dignity  and  strength. 
Rutledge,  who  accepted  in  1795,  was  one  of  the  very 
foremost  characters  in  the  whole  country ;  and  we  have 
seen  what  a  career  in  the  Senate  Ellsworth  abandoned 
in  order  to  take  the  place. 

Yet  he  found  it  in  many  ways  less  attractive  than 
his  seat  in  the  Senate.  His  new  duties  left  him  even 
less  time  to  devote  to  his  home  and  his  family  than 
he  had  hitherto  enjoyed.  Iredell's  letters  are  full  of 


242  OLIVER   ELLSWORTH 

regrets  at  the  long  separation  from  his  wife  and  chil 
dren,  and  of  complaints — though  never  bitter  or  queru 
lous  —  at  the  length  of  the  circuits,  the  badness  of  the 
roads,  and  the  other  hardships  of  the  life.  There  are 
indications  that  even  Ellsworth's  strong  constitution 
was  by  this  time  showing  some  effects  of  his  long  and 
intense  application  to  public  business.  At  least  twice 
he  was  prevented  by  illness  from  attending  the  Supreme 
Court  at  Philadelphia.1  But  there  is,  as  usual,  noth 
ing  from  his  pen  that  sounds  like  a  complaint ;  indeed, 
there  is  hardly  a  word  of  any  kind  of  comment  on  his 
new  duties  and  experiences.2  His  starting  so  promptly 
on  the  southern  circuit  was  entirely  characteristic.  He 
also  at  once  set  himself  to  repair  any  deficiencies  in 
legal  knowledge  under  which,  from  his  long  absorp 
tion  in  other  subjects,  he  might  be  laboring.  As  Con 
necticut  was  still  an  agricultural  state,  his  experience 
there  as  judge  and  as  practitioner  had  given  him  no 
great  familiarity  with  commercial  law,  and  he  had 
probably  never  studied  international  law  at  all.  He 
accordingly  undertook  a  severe  course  of  study  and 
reading. 

The  day  John  Adams  was  inaugurated  President, 
he  wrote  to  his  wife,  "  Chief  Justice  Ellsworth  ad 
ministered  the  oath  and  with  great  energy."  Con 
temporary  sources  yield  us  few  similar  glimpses  of 
Ellsworth  as  Chief  Justice.  But  his  tall  figure,  his 
strong  features,  his  clear,  penetrating  blue  eyes, 
his  resonant  voice,  and  his  simple  manners  made  him 


1  "Life  and  Correspondence  of  James  Iredell,"  III,  492,  519. 

2  I  have  found  but  one  letter  written  by  the  Chief  Justice  to  an  associate 
on  the  bench  —  a  brief  and  unimportant  note  to  Iredell,  from  Raleigh. 
Ibid.,  576. 


THE   SUPREME   COURT  243 

an  impressive  figure  of  a  republican  judge.  By  all 
accounts,  he  presided  over  the  Supreme  Court  with 
perfect  self-possession,  and  he  knew  how  to  assert 
the  dignity  of  his  office  if  any  one,  even  one  of  his 
brethren  of  the  bench,  offended  against  it.  Mr. 
Justice  Chase,  it  appears,  was  sometimes  wanting 
in  the  proper  respect  for  his  associates,  and  given 
to  brow-beating  counsel ;  and  on  one  occasion  Ells 
worth,  deeply  provoked,  took  a  severe  method  to  show 
him  his  place.  The  incident  occurred  when  they  two 
were  sitting  together  in  a  circuit  court  at  Philadelphia. 
Jared  Ingersoll  of  Philadelphia,  who  was  of  counsel  in 
the  cause  on  trial,  had  hardly  entered  on  his  argument 
when  Judge  Chase  impatiently  interrupted  and  told 
him  that  the  point  he  was  engaged  on  was  well 
settled  and  he  need  not  argue  it.  Vexed  and  discon 
certed,  Ingersoll  proceeded  to  a  second  head  of  his 
contention,  only  to  be  again  interrupted  and  told  that 
he  was  wasting  time.  Mastering  his  anger,  he  began 
a  third  argument ;  and  a  third  time  Chase  interrupted 
him.  The  indignant  attorney  folded  up  his  notes  and 
took  his  seat.  Ellsworth  took  out  his  snuff-box, 
tapped  it  with  his  finger,  and  with  plenty  of  emphasis 
said  to  Mr.  Ingersoll :  "  The  Court  has  expressed  no 
opinion,  sir,  upon  these  points,  and  when  it  does  you 
will  hear  it  from  the  proper  organ  of  the  court.  You 
will  proceed,  Sir,  and  I  pledge  you  my  word  you  shall 
not  be  interrupted  again."  And  he  turned  upon  his 
overbearing  associate  a  look  that  made  him  fairly 
quail  in  his  seat.1  Yet  when  no  sense  of  duty 
prompted  the  new  Chief  Justice  to  self-assertion  he 

1  Wood,  on  authority  of  Uriah  Tracy,  senator  from  Connecticut,  who 
witnessed  the  incident.     Flanders,  187-188. 


244  OLIVER   ELLSWORTH 

could  be  as  entirely  democratic  and  unpretentious  as 
his  successor.  On  the  passage  to  Savannah,  the  Due 
de  Liancourt,  who  was  travelling  by  the  same  ship, 
marvelled  much  that  the  other  passengers  showed 
so  little  deference  to  so  great  an  official,  and  the 
chances  are  that  Ellsworth  really  preferred  to  be 
treated  with  no  particular  consideration.1  One  other 
glimpse  of  him  displays  not  merely  his  democratic 
spirit  but  the  Yankee  readiness  and  fertility  in  prac 
tical  contrivances  which  he  had  got  from  his  New 
England  life  and  training.  Somewhere  on  the  south 
ern  circuit,  a  coach  breaks  down,  and  one  of  the  pas 
sengers,  a  tall  and  energetic  man,  promptly  offers  his 
services  and  in  a  little  while  succeeds  in  mending  it. 
An  observer,  much  impressed  with  his  mechanical 
skill,  inquires,  "  Who  is  that  gentleman  who  under 
stands  everything,  and  is  eloquent  about  a  coach 
wheel?"  The  reply  is,  "The  Chief  Justice  of  the 
United  States."2 

The  greater  part  of  the  duties  of  the  justices,  as 
well,  no  doubt,  as  the  harder  part,  —  certainly,  the 
least  agreeable  part,  —  were  those  they  rendered  in 
the  circuit  courts.  At  this  period,  neither  of  the  two 
sessions  of  the  Supreme  Court,  which  were  held  in 
February  and  in  August,  lasted,  as  a  rule,  more  than 
two  or  three  weeks.  But  to  reach  and  then  to  travel 
the  southern  district  was  a  matter  of  months.  Ells 
worth  uncomplainingly  took  his  full  share  of  these 
duties,  and  as  he  began  with  the  southern  circuit  he 
had  to  travel  it  again  before  he  left  the  bench.  Some 
times,  it  is  said,  he  took  with  him  on  his  longer  jour- 

1  Liancourt's  "Travels,"  I,  553. 

2  "  National  Portrait  Gallery,"  IV,  article  on  Ellsworth. 


THE   SUPREME   COURT  245 

neys  some  young  boy  of  his  neighborhood,  who  not 
infrequently  rode  behind  him  on  horseback.  From 
his  training  and  temper,  he  found  the  duties  of  a  nisi 
prius  judge  particularly  congenial,  and  discharged  them 
with  distinguished  success.  It  appears,  too,  from  the 
letters  of  Jay  and  of  Iredell,  that  these  expeditions, 
trying  as  in  many  ways  they  were,  offered  some  com 
pensations.  Perhaps  no  other  officials  of  the  new  gov 
ernment  had  so  good  an  opportunity  as  the  justices  to 
see  the  whole  country  and  to  become  acquainted  with 
the  leading  characters  of  all  the  sections.  Wherever 
they  went,  the  people  treated  them  with  much  respect, 
and  many  hospitalities  were  offered  them.  The  open 
ing  of  a  circuit  court  was  always  something  of  an  occa 
sion.  The  judge's  opening  charge  to  the  grand  jury 
was  a  formal  address,  written  with  care,  and  usually  in 
the  nature  of  a  philosophical  discourse  on  American 
institutions  in  general,  and  particularly  on  the  place  of 
the  courts  in  the  civil  order.  Frequently,  it  took  a 
political  turn,  and  it  had  sometimes  a  distinctly  partisan 
character.  All  the  early  judges  of  the  highest  court 
seem  to  have  been  Federalists,  and  they  naturally 
dilated  on  the  duty  of  loyalty  to  the  general  govern 
ment  and  the  Constitution's  virtues  and  beneficence. 
Ellsworth  followed  the  custom,  and  his  charges  won 
much  praise  for  their  uncommon  clearness  and  force. 
Several  have  been  preserved,  and  among  them  the  first, 
given  at  Savannah  in  April,  1796.  The  principal 
paragraph  may  serve  to  show  that  if  Ellsworth  hated 
and  feared  the  pen  it  was  not  because  he  could  not 
give  to  weighty  thought  a  stately  utterance.  It  reads  i1 

1  Wood  and  Jackson  Mss.     All  but  a  few  sentences  at  the  opening  and 
the  close  are  given  here. 


246  OLIVER   ELLSWORTH 

"  Your  duty  may  be  deemed  unpleasant,  but  it  is 
too  important  not  to  be  faithfully  performed.  To  pro 
vide  in  the  organization  that  reason  shall  prescribe 
laws,  is  of  little  avail,  if  passions  are  left  to  control 
them.  Institutions  without  respect,  laws  violated 
with  impunity,  are,  to  a  Republic,  the  symptoms  and 
the  seed  of  death.  No  transgression  is  too  small,  no 
transgressor  too  great,  for  animadversion.  Happily 
for  our  laws,  they  are  not  written  in  blood,  that  we 
should  blush  to  read  them,  or  hesitate  to  execute  them. 
They  breathe  the  spirit  of  a  parent,  and  expect  the 
benefits  of  correction,  not  from  severity  but  from 
certainty.  Reformation  is  never  lost  sight  of,  till 
depravity  becomes,  or  is  presumed  to  be,  incorrigible. 
Imposed  as  restraints  here  are,  not  by  the  jealousy  of 
usurpation,  nor  the  capriciousness  of  insensibility,  but 
as  aids  to  virtue,  and  guards  to  rights,  they  have  a  high 
claim  to  be  rendered  efficient.  Nor  is  this  claim  more 
heightened  by  the  purity  of  their  source,  and  the  mild 
ness  of  their  genius,  than  by  the  magnitude  of  the 
interests  they  embrace.  The  national  laws  are  the 
national  ligatures  and  vehicles  of  life.  Though  they 
pervade  a  country  as  diversified  in  its  habits  as  it  is 
vast  in  extent,  yet  they  give  to  the  whole  harmony  of 
interest  and  unity  of  design.  They  are  the  means  by 
which  it  pleases  Heaven  to  make,  of  weak  and  dis 
cordant  parts,  one  great  people,  and  to  bestow  upon 
them  unexampled  prosperity,  and  so  long  as  America 
shall  continue  to  have  one  will,  organically  expressed 
and  enforced,  must  she  continue  to  rise  in  opulence 
and  respect.  Let  the  man  or  combination  of  men 
who,  from  whatever  motive,  oppose  partial  to  general 
will,  and  would  disjoint  their  country  to  the  sport  of 


THE   SUPREME   COURT  247 

fortune,  feel  their  impotence  and  error.  Admonished 
by  the  fate  of  Republics  which  have  gone  before  us, 
we  should  profit  by  their  mistakes.  Impetuosity  in 
legislation,  and  instability  in  execution,  are  the  rocks 
on  which  they  perished.  Against  the  former,  indeed, 
we  hold  a  security,  which  they  were  ignorant  of,  by 
a  representative  instead  of  the  aggregate,  and  by  a 
distribution  of  the  legislative  power  to  maturing  and 
balancing  bodies,  instead  of  the  subjection  of  it  to 
momentary  impulse,  and  the  predominance  of  faction. 
Yet  from  the  danger  of  inexecution  we  are  not  exempt. 
Strength  of  virtue  is  not  alone  sufficient,  there  must 
be  strength  of  arm,  or  the  experiment  is  hopeless. 
Numerous  are  the  vices,  and  as  obstinate  the  preju 
dices,  and  as  daring  as  restless  is  the  ambition, 
which  perpetualjy  hazard  the  national  peace,  and  they 
certainly  require  that  to  the  authority  vested  in  the 
executive  department,  there  be  added  liberal  confi 
dence,  and  the  increasing  cooperation  of  all  good 
citizens  for  its  support.  Let  there  be  vigilance,  con 
stant  diligence,  and  fidelity  for  the  execution  of  laws 
—  of  laws  made  by  all  and  having  for  their  object  the 
good  of  all.  So  let  us  rear  an  empire  sacred  to  the 
rights  of  man  and  commend  a  government  of  reason 
to  the  nations  of  the  earth." 

While  Ellsworth  presided  over  the  Supreme  Court, 
no  great  number  of  cases  came  before  it.  His  own 
decisions  are  so  few,  and  so  extraordinarily  brief,  that 
they  fill  less  space  in  the  reports  than  many  a  single 
more  elaborate  opinion.  But  several  of  them  deal 
with  questions  which  were  at  once  new  and  fundamen 
tal.  Marshall  certainly  deserves  the  distinction  he 
enjoys  as  the  foremost  judicial  exponent  of  the  Consti- 


248  OLIVER   ELLSWORTH 

tution  and  as  the  great  constructive  statesman  who 
completed  on  the  bench  the  work  of  nation-building 
begun  on  the  Revolutionary  battle-fields  and  continued 
in  the  great  convention  and  the  early  Congresses. 
But  when  Marshall  came  to  the  bench,  Jay  and  Ells 
worth  and  their  associates  had  already  done  much 
that  was  of  a  piece  with  his  achievement.  It  is 
true  that  they  had  not  yet  exercised  the  utmost 
authority  of  the  judiciary;  they  had  not  yet  pro 
nounced  any  law  of  Congress  to  be  null  and  void. 
But  the  very  day  Ellsworth  took  his  seat  in  the 
Supreme  Court,  a  case  was  on  trial  which  could 
hardly  have  been  tried  at  all  without  a  clear  assump 
tion  by  the  court  of  the  right  to  make  such  a  decision. 
It  was  the  case  of  Hylton  vs.  the  United  States,1  in 
volving  the  constitutionality  of  a  carriage  tax  imposed 
by  an  act  of  1794,  and  Alexander  Hamilton  appeared 
before  the  court  in  favor  of  sustaining  the  law.  As 
Ellsworth  had  not  heard  all  the  arguments,  he  took  no 
part  in  the  decision.  In  the  case  of  Ware  vs.  Hylton 
also,  which  was  tried  within  a  day  or  two,  he  delivered 
no  opinion ;  but  apparently  he  did  concur  in  the  deci 
sion,  and  it  was  a  decision  to  set  aside  a  perfectly 
plain  provision  of  a  state  law.2 

This  famous  and  hard-fought  cause,  appealed  from 
a  circuit  court  at  Richmond,  turned  on  the  effect  of  a 
clause  in  the  treaty  of  peace  with  England  which  pro 
vided  that  British  creditors  should  "  meet  with  no  law 
ful  impediment  in  the  collection  of  their  just  dues  from 
their  American  debtors."  During  the  war,  Virginia 
had  sequestered  all  debts  due  from  her  citizens  to 
Britons,  and  in  the  lower  court  a  great  array  of  counsel, 

1  3  Dallas,  171.  2  Ibid.,  199 ;  McRee's  "  Iredell,"  II,  395. 


THE   SUPREME   COURT  249 

headed  by  the  venerable  Patrick  Henry,  had  argued  for 
the  validity  of  the  law,  the  treaty  to  the  contrary  not 
withstanding.  John  Marshall,  who  had  been  one  of 
Henry's  fellow-counsel  in  the  trial  at  Richmond,  made 
now  before  the  Supreme  Court  an  argument  that  con 
vinced  every  one  of  his  extraordinary  powers.  But 
fortunately  he  failed  to  convince  the  court  that  the 
treaty  did  not  abrogate  the  law.  Iredell,  in  his  elabo 
rate  dissenting  opinion,  sustained  Virginia's  position ; 
but  Chase,  Paterson,  Wilson,  and  Cushing,  all  in  long 
written  opinions,  took  the  other  side.  If  Ellsworth 
did  not  actually  pass  on  the  case,  he  certainly  agreed 
with  the  majority,  for  he  had  soon  to  pass  on  another 
case  involving  substantially  the  same  question,  and 
he  then  firmly  sustained  the  principle  established  in 
Ware  vs.  Hylton.  Sitting  in  a  circuit  court  in  North 
Carolina,  he  delivered  an  opinion,  perhaps  the  most 
elaborate  of  his  that  is  now  preserved,  in  which  he  fully 
discussed  the  bearing  of  the  treaty  on  the  rights  of 
British  creditors.  The  case  on  trial  differed  from 
Ware  vs.  Hylton  only  in  the  circumstance  that  North 
Carolina,  instead  of  merely  sequestering,  had  actually 
confiscated  debts  due  to  Britons.  In  that  part  of  his 
opinion  which  dealt  with  the  conflicting  provisions  of 
the  treaty  and  the  law,  the  Chief  Justice  reasoned  in 
this  broad  fashion  : 

"  As  to  the  opinion  that  a  treaty  does  not  annul  a 
statute,  so  far  as  there  is  an  interference,  it  is  unsound. 
A  statute  is  a  declaration  of  the  public  will,  and  of  high 
authority ;  but  it  is  controllable  by  the  public  will  sub 
sequently  declared ;  hence  the  maxim,  that,  when  two 
statutes  are  opposed  to  each  other,  the  latter  abrogates 
the  former.  Nor  is  it  material,  as  to  the  effect  of  the 


250  OLIVER   ELLSWORTH 

public  will,  what  organ  it  is  declared  by,  provided  it  be 
an  organ  constitutionally  authorized  to  make  the  decla 
ration.  A  treaty,  when  it  is  in  fact  made,  is,  with  re 
gard  to  each  nation  that  is  a  party  to  it,  a  national 
act ;  an  expression  of  the  national  will,  as  much  as  a 
statute  can  be :  and  does,  therefore,  of  necessity  annul 
any  prior  statute,  so  far  as  there  is  an  interference. 
The  supposition  that  the  public  can  have  two  wills, 
at  the  same  time,  repugnant  to  each  other  —  one  ex 
pressed  by  a  statute  and  another  by  a  treaty  —  is 
absurd."1 

None  of  his  learned  and  more  experienced  associates 
had  put  quite  so  clearly  the  truth  that  in  sustaining 
the  supreme  law  of  the  land  against  other  laws  of  less 
authority  the  courts  of  the  United  States  were  doing, 
after  all,  only  what  all  courts  everywhere  must  do :  that 
is  to  say,  they  were  merely  deciding  and  declaring  what 
was  the  law.  The  British-debts  cases  were  an  impor 
tant  category  of  the  business  before  the  courts,  as  they 
were  also  an  important  factor  in  politics,  but  by  their 
final  effect  in  making  plain  the  supremacy  of  the  Con- 
^stitution  and  of  the  national  authority  they  no  doubt 
amply  repaid  all  the  time  and  trouble  they  had  cost. 

It  seems  best,  instead  of  following  any  chronological 
order,  to  group  in  two  or  three  categories  the  other 
cases  that  Ellsworth  helped  to  decide.  One  category  — 
those  cases,  namely,  that  turned  on  purely  legal  issues, 
and  which  appeal,  therefore,  almost  solely  to  a  profes 
sional  interest  —  we  may  quickly  dismiss.  Brown  vs. 
Barry,2  in  which  the  arguments  of  counsel  dealt  mainly 
with  a  fine  question  of  special  pleading,  and  Clark  vs. 

1  Flanders,  197-203,  quotes  the  whole  opinion  "from  a  manuscript." 

2  3  Dallas,  365. 


THE   SUPREME   COURT  251 

Russell,1  in  which  the  issue  was  again  abstruse  and 
technical,  are  good  examples  of  the  class.  It  is  worthy 
of  remark,  however,  that  in  dealing  with  such  cases 
Ellsworth  showed  the  same  disposition  Marshall  after 
ward  displayed;  his  opinions,  brief  as  always,  strove 
to  base  themselves  on  reasoning  that  was  broad  and 
practical,  to  divest  the  controversy  of  its  merely  tech 
nical  quality  and  set  it  in  the  plain  light  of  justice 
and  common  sense.  This  characteristic  of  his  judicial 
method  appears  very  strikingly  in  the  case  of  Irvine  vs. 
Sim's  Lessee,2  in  which  counsel  had  discussed  at  great 
length  the  effect  on  certain  Pennsylvania  land  titles  of 
a  treaty  or  agreement  between  that  state  and  Virginia. 
In  a  single  page  the  Chief  Justice  stated  the  facts  of 
the  case,  and  summarized  broadly  the  reasons  for  the 
court's  decision.  Iredell,  in  a  concurrent  opinion, 
required  nine  pages  to  give  his  reasons. 

Of  those  decisions  which  had  both  a  permanent 
force  or  significance  and  an  interest  other  than  profes 
sional,  most  were  jurisdictional.  The  courts  had  not 
yet  fully  defined  their  place  in  the  federal  system  or 
fully  asserted  their  entire  authority.  This,  in  fact, 
they  could  only  accomplish  gradually,  as  from  time  to 
time  specific  controversies  led  to  an  assertion  or  a 
disputation  of  their  jurisdiction.  Neither  had  they 
thoroughly  adjusted  their  relations  among  themselves. 

In  three  leading  cases,  Ellsworth  and  his  associates 
of  the  Supreme  Court  considered  its  relations  with  the 
Circuit  and  District  courts,  and  laid  down  rules  of 
a  far-reaching  potency  concerning  writs  of  error  and 
appeals. 

1  3  Dallas,  415  ;  McRee's  « Iredell,"  II,  549. 

2  3  Dallas,  425  ;  McRee's  "Iredell,"  II,  543-544. 


252  OLIVER   ELLSWORTH 

In  Wiscart  vs.  Dauchy,1  an  action  in  equity  brought 
up  by  writ  of  appeal  from  a  circuit  court,  the  main 
question  was,  Could  the  Supreme  Court  go  behind  the 
record  of  facts  sent  up  by  the  Circuit  Court,  examine 
for  itself  the  testimony,  —  which  in  this  particular  in 
stance  had  also  been  sent  up,  —  and  perhaps  readjudi- 
cate  the  facts  ?  Ellsworth,  speaking  for  the  majority, 
disposed  of  the  issue  in  two  short,  oral  paragraphs : 

"  If  causes  of  equity  or  admiralty  jurisdiction  are 
removed  hither,  accompanied  with  a  statement  of 
facts,  but  without  the  evidence,  it  is  well,  and  the 
statement  is  conclusive  as  to  all  the  facts  which  it 
contains.  This  is  unanimously  the  opinion  of  the 
court. 

"  If  such  causes  are  removed  with  a  statement  of 
the  facts,  and  also  with  the  evidence,  still  the  state 
ment  is  conclusive,  as  to  all  the  facts  contained  in  it. 
This  is  the  opinion  of  the  court,  but  not  unanimously." 

But  Wilson,  who  dissented  from  the  second  ruling, 
argued  first  that  it  was  not  a  correct  interpretation  of 
the  judiciary  act,  and  then  that  the  Constitution  of  its 
own  force  granted  to  the  Supreme  Court  appellate  ju 
risdiction,  always  including  the  right  to  ree'xamine  evi 
dence,  in  all  maritime  and  admiralty  causes.  Ellsworth, 
in  reply,  denied  that  an  appeal  could  be  sustained  with 
out  reference  to  a  rule  provided  by  Congress,  and  then 
went  on  to  analyze  closely  the  pertinent  provisions  of 
the  law  he  had  written,  and  to  distinguish,  in  language 
that  has  many  times  been  quoted,  writs  of  error  from 
appeals.  "  An  appeal,"  he  said,  "  is  a  process  of  civil 
law  origin,  and  removes  a  cause  entirely,  subjecting  the 
facts  as  well  as  the  law  to  review  and  retrial ;  but  a  writ 

1  3  Dallas,  240. 


THE   SUPREME   COURT  253 

of  error  is  a  process  of  common  law  origin,  and  it  re 
moves  nothing  for  reexamination  but  the  law."  To 
Wilson's  practical  objections  to  the  ruling,  he  opposed 
other  considerations  quite  as  practical ;  but  he  also  sen- 
tentiously  observed  that  "  it  is  of  more  importance,  for 
a  judicial  determination,  to  ascertain  what  the  law  is, 
than  to  speculate  what  it  ought  to  be." 

In  Jennings  vs.  the  Brig  Perseverance,1  an  admi 
ralty  case,  in  which  the  record  sent  up  from  the  lower 
court  contained  the  evidence,  but  left  out  the  statement 
of  fact,  it  was  held,  nevertheless,  that  the  principle 
of  Wiscart  vs.  Dauchy  applied.  "  If,"  said  Paterson, 
"  there  is  no  statement  of  facts,  the  consequence  seems 
naturally  to  follow,  that  there  can  be  no  error."  The 
rule  stood  until  1803,  when  Congress,  by  an  amend 
ment  to  the  judiciary  act,  provided  for  appeals  in 
equity  and  admiralty  causes. 

In  Wilson  vs.  Daniel, 2  the  court  with  equal  clear 
ness  disposed  of  another  question  concerning  its  ap 
pellate  jurisdiction.  In  a  civil  action  in  a  circuit  court 
for  a  very  large  sum  of  money,  the  jury  had  found  for 
the  plaintiff,  but  only  in  the  sum  of  eighteen  hundred 
dollars.  The  case  being  brought  up  on  a  writ  of  error, 
it  was  argued  that  the  Supreme  Court  had  no  jurisdic 
tion,  since  a  civil  action  could  not  be  removed  from  a 
circuit  court  unless  the  sum  in  dispute  exceeded  two 
thousand  dollars.  When  the  case  was  first  argued, 
Ellsworth  was  absent ;  the  justices  divided,  and  no  de 
cision  was  rendered.  But  at  a  second  hearing  Ells 
worth,  speaking  for  the  majority,  held  that  to  ascertain 
the  matter  in  dispute  it  was  necessary  to  go  to  the 
beginning  of  the  action.  He  pointed  out  that  if  the 

1  3  Dallas,  336.  2  Ibid.,  401 ;  McRee's  «  Iredell,"  532-533. 


254  OLIVER   ELLSWORTH 

first  judgment  should  be  the  criterion,  and  this  for  any 
given  case  should  be  for  less  than  two  thousand  dol 
lars,  the  defendant  would  have  no  relief,  but  the  plain 
tiff  would  have  a  right  to  a  removal.  From  this  ruling, 
based  on  common  law  usage,  Iredell  and  Wilson  dis 
sented  ;  and  Iredell's  opinion  came  in  time  to  be  ac 
cepted  as  the  right  construction  of  the  law. 

In  Turner  vs.  the  President,  Directors,  and  Com 
pany  of  the  Bank  of  North  America,1  Ellsworth,  in  the 
last  opinion  he  ever  rendered  for  the  Supreme  Court, 
dealt  with  still  another  question  of  jurisdiction.  The 
decision  turned  on  the  residence  of  the  parties  to  the 
action.  Unless  they  were  of  different  states,  the  case 
did  not  come  within  any  provision  of  the  Constitution 
or  the  law ;  and  on  this  point  the  record  was  defective. 
One  of  the  parties  was  described  merely  as  "  using  trade 
or  merchandise  in  partnership  "  at  certain  places.  The 
court  accordingly  held  that  there  was  error,  and  on 
this  ground  reversed  the  judgment  of  the  Circuit  Court, 
which  it  would  otherwise  have  affirmed,  and  thereby 
established  the  rule  that  in  all  such  cases  the  record 
must  state  clearly  the  evidence  of  all  the  parties.  "It 
is  exceedingly  to  be  regretted,"  Ellsworth  remarked, 
"  that  exceptions  which  might  be  taken  in  abatement, 
and  often  cured  in  a  moment,  should  be  reserved  to 
the  last  stage  of  a  suit,  to  destroy  its  fruits." 

In  view  of  the  origin  of  the  federal  judiciary,  it  is 
interesting  to  find  that  the  courts  were  at  this  time 
frequently  considering,  along  with  these  questions  of 
jurisdiction  inter  se,  questions  of  the  extent  of  their 
maritime  authority.  With  maritime  cases,  in  fact,  the 
new  Chief  Justice  was  occupied  oftener  than  with  any 

1  4  Dallas,  8. 


THE   SUPREME   COURT  255 

other  kind.  France  and  England  were  at  war,  pri 
vateers  of  both  nations  were  scouring  the  seas,  and 
neither  showed  much  respect  for  America's  rights  as 
a  neutral.  During  Ellsworth's  first  term,  a  case  was 
argued  that  displays  curiously  enough  the  compli 
cated  character  of  the  questions  to  which  this  inter 
national  situation  was  giving  rise.1  The  Mary  Ford, 
an  English  ship,  had  been  captured  by  the  French, 
who  relieved  her  of  her  crew  and  cargo,  attempted  to 
destroy  her,  and  left  her  a  derelict.  In  this  state  an 
American  vessel  found  her,  and  she  was  brought  into 
port  at  Boston  and  there  libelled  for  salvage.  But  the 
British  consul  intervened  for  her  original  owners,  and 
the  French  consul  for  her  captors.  The  District  Court 
awarded  to  the  original  owners  two-thirds  of  the  pro 
ceeds  of  the  sale,  and  to  the  salvors  the  other  third. 
The  captors  appealed,  and  the  Circuit  Court  awarded 
the  larger  share  to  them.  From  this  decree  the 
original  owners  appealed,  and  the  jurisdiction  of  the 
District  Court  was  questioned.  The  Supreme  Court 
now  affirmed  the  District  Court's  original  jurisdiction, 
but  sustained  the  Circuit  Court's  decree. 

Before  Ellsworth  came  to  the  bench,  the  decision 
in  the  case  of  Glass  vs.  the  Sloop  Betsy2  had  estab 
lished  the  jurisdiction  of  our  admiralty  courts  in  all 
cases  of  prizes  and  captures  on  the  high  seas.  The 
case  of  La  Vengeance?  argued  on  a  writ  of  error  at 
his  second  term,  brought  up  the  question  of  seizures 
within  a  port  and  also  the  novel  question  whether  the 
admiralty  court's  jurisdiction  extended  over  navigable 
waters  within  a  county.  La  Vengeance,  a  French 
privateer,  had  been  libelled  for  exporting  arms  from 

1  McDonough  vs.  Delancey,  3  Dallas,  188.          2  Ibid.,  6.          8  Ibid.,  297. 


256  OLIVER   ELLSWORTH 

Sandy  Hook,  N.J.,  to  a  foreign  country,  contrary  to 
the  neutrality  law  of  1794;  and  it  was  contended 
that  the  cause,  to  be  cognizable  by  federal  tribunals, 
must  have  arisen  wholly  on  the  high  seas.  This 
objection,  however,  the  Chief  Justice  brushed  aside, 
holding  broadly  that  "  transportation  is  entirely  a 
water  transaction  " ;  and  the  court  sustained  the  for 
feiture  by  the  lower  court.  But  in  Moodie  vs.  the 
Ship  Phcebe  Ann,1  argued  at  the  same  term,  Ellsworth 
and  his  fellows  —  all,  probably,  anti-French  in  their 
sympathies  —  showed  that  they  would  follow  the  law, 
even  when  it  worked  favorably  to  France.  A  French 
privateer  having  taken  a  British  merchantman  and 
sent  her  into  port  at  Charleston,  the  British  con 
sul,  charging  that  the  privateer  had  been  illegally 
fitted  out  in  the  United  States,  demanded  restitution 
of  the  prize.  But  the  evidence  showed  that,  though 
the  privateer  had  entered  Charleston  for  repairs,  she 
had  not  there  received  any  augmentation  of  her  force ; 
and  the  court  held  that  this  did  not  constitute  an 
illegal  fitting  out.  Counsel  had  argued  against  the 
policy  of  suffering  foreign  privateers  to  equip  in 
American  ports,  and  the  Chief  Justice  replied :  "  Sug 
gestions  of  policy  and  conveniency  cannot  be  consid 
ered  in  the  judicial  determination  of  a  question  of 
right ;  the  treaty  with  France,  whatever  that  is,  must 
have  its  effect." 

The  criminal  causes  Ellsworth  had  to  pass  on 
may  be  treated  together  as  a  third  category.  Most 
of  them  came  before  him  in  circuit  courts,  and  several, 
having  an  obvious  bearing  on  the  politics  of  the  time, 
excited  much  partisan  feeling.  Mr.  Justice  Chase's 

1  3  Dallas,  319. 


THE   SUPREME   COURT  257 

conduct  of  similar  trials  so  enraged  the  Republicans 
that  a  few  years  later,  when  they  had  come  into 
power,  they  attempted  to  remove  him  by  impeach 
ment.  Ellsworth's  course  was  never  so  severely  cen 
sured.  It  did  not  inflame  his  opponents  into  such 
a  heat  of  anger  that  their  criticism  ever  turned  into 
attacks  upon  his  personal  integrity.  On  the  contrary, 
scarcely  another  public  character  of  the  period  stood 
so  well  the  ordeal  of  politically  hostile  criticism.  Yet 
his  handling  of  legal  questions  that  had  a  political  side 
was  by  no  means  timid,  nor  was  he  himself  lukewarm 
in  his  party  loyalty.  In  what  is  probably  the  best 
known  of  all  his  judicial  utterances,  he  took  a  very 
decided  stand  on  a  question  over  which  opinions 
were  then  much  divided,  and  which  has  caused  heated 
controversies  at  later  periods  of  our  history. 

The  case  itself  was  of  a  nature  to  stir  up  party  sym 
pathies  and  antagonisms.  One  Isaac  Williams  had 
been  indicted  for  accepting  a  commission  in  the  French 
navy,  contrary  to  the  treaty  of  amity  and  commerce 
between  Great  Britain  and  the  United  States.  He 
was  tried  in  a  circuit  court  at  Hartford,  in  which  Ells 
worth  sat  with  his  friend  Law,  who  was  now  judge  of 
the  Hartford  district.  The  defence  offered  to  prove 
that  Williams  was  a  naturalized  citizen  of  France,  and 
Law  thought  that  the  evidence  of  this  fact  ought  to 
go  to  the  jury.  But  Ellsworth  ruled  it  out,  and  he 
based  his  ruling  on  the  common  law  doctrine  of  per 
petual  allegiance,  holding  the  common  law  to  be  part 
of  the  law  of  the  land. 

Whatever  may  be  thought  of  the  justice,  the  wis 
dom,  or  the  legal  correctness  of  this  stand,  the  bold 
ness  of  it  cannot  be  questioned.  The  federal  courts, 


258  OLIVER   ELLSWORTH 

it  is  true,  had  already  asserted  a  common  law  jurisdic 
tion  in  criminal  cases.  Jay  had  asserted  it  in  a  much 
discussed  trial.1  On  this  point,  Ellsworth  merely  sus 
tained  a  position  clearly  assumed  by  his  predecessor. 
But  in  the  very  case  in  which  the  first  Chief  Justice 
had  first  taken  this  position,  the  jury  had,  nevertheless, 
acquitted  a  defendant  charged  with  the  same  offence 
Williams  was  now  charged  with,  and  without  Will- 
iams's  defence  of  naturalization ;  and  the  verdict  had 
been  manifestly  popular.  As  to  the  specific  common 
law  maxim,  that  "no  man  can  throw  off  his  allegiance," 
the  Supreme  Court  had  once,  in  Rutledge's  day,  avoided 
a  pronouncement,  in  a  case  which  certainly  permitted 
the  court  to  consider  whether  the  rule  had  force  in  the 
United  States.  Ellsworth  met  the  issue  without  the 
least  attempt  at  quibbling,  or  the  least  sign  of  hesita 
tion.  He  told  the  jury,  in  substance,  that  no  American 
had  the  right  to  become  a  citizen  of  any  other  country. 
But  though  he  drew  the  rule  from  the  common  law, 
he  justified  it  by  a  theory  quite  unknown  to  the  com 
mon  law.  For  the  common  law  doctrine  of  citizen 
ship  is  clearly  feudal,  and  had  its  origin  in  a  distinctly 
feudal  usage ;  and  the  American  Chief  Justice  now 
derived  it  from  the  social  compact  —  a  curious  in 
stance  of  an  occurrence  not  uncommon  in  history: 
one  age  taking  the  creed  of  another,  but  supporting 
it  with  entirely  fresh  reasoning,  based  on  different  cus 
toms.  No  member  of  the  compact,  Ellsworth  argued, 
can  dissolve  his  connection  with  the  community  unless 
he  first  obtain  the  community's  consent.  Counsel  had 
pointed  out  that  our  own  government  naturalized 

1  The  case  of  United   States  vs.   Henfield,  Van  Santvoord,   55-56; 
Wharton's  State  Trials,  49. 


g 
<  5- 

SI 

O!     o 


THE   SUPREME   COURT  259 

foreigners,  and  asked  if  that  were  not  a  sign  of  con 
sent  ;  but  on  this  point  he  observed : 

"  Consent  has  been  argued  from  the  acts  of  our  gov 
ernment  permitting  the  naturalization  of  foreigners. 
When  a  foreigner  presents  himself  here,  and  proves 
himself  to  be  of  good  moral  character,  well  affected  to 
the  Constitution  and  Government  of  the  United  States, 
and  a  friend  to  the  good  order  and  happiness  of  civil 
society;  if  he  has  resided  here  the  time  prescribed 
by  law,  we  grant  him  the  privilege  of  a  citizen.  We 
do  not  inquire  what  his  relation  is  to  his  own  coun 
try;  we  have  not  the  means  of  knowing,  and  the  in 
quiry  would  be  indelicate ;  we  leave  him  to  judge  of 
that.  If  he  embarrasses  himself  by  contracting  con 
tradictory  obligations,  the  fault  and  the  folly  are  his 
own.  But  this  implies  no  consent  of  the  government, 
that  our  own  citizens  should  expatriate  themselves. 
Therefore  it  is  my  opinion  that  these  facts  which  the 
prisoner  offers  to  prove  in  his  defence  are  totally 
irrelevant;  they  can  have  no  operation  in  law;  and 
the  jury  ought  not  to  be  embarrassed  or  troubled  with 
them  ;  but  by  the  constitution  of  the  court  the  evi 
dence  must  go  to  the  jury." * 

In  accordance  with  this  ruling,  the  jury  convicted 
Williams.  But  the  doctrine  of  the  ruling  began  at 
once  to  be  questioned.  In  a  newspaper  of  the  day, 
a  writer  who  signed  himself  Aristogiton,  and  who  was 
thought  to  be  George  Nicholas  of  Virginia,  assailed 
it  with  much  turgid  but  sincere  rhetoric.  The  Chief 
Justice,  he  argued,  "  must  either  admit  that  according 
to  the  principles  of  our  naturalization  laws  our  citizens 
have  a  right  to  expatriate  themselves,  or  that  the 

1  Van  Santvoord,  267-272,  —  the  best  account  of  this  trial ;  Flanders, 
194-197. 


260  OLIVER   ELLSWORTH 

legislature  of  the  United  States,  that  body  whose  laws 
(when  they  are  constituted)  he  is  bound  to  expound 
and  enforce,  have  been  guilty  of  the  most  horrible  of 
all  crimes,  and  have  given  a  sufficient  cause  of  war  to 
all  the  nations  of  the  world."  And  already,  a  month 
before  the  trial  of  Williams,  Jefferson  had  attacked 
the  entire  claim  of  the  courts  to  a  common  law  crim 
inal  jurisdiction  as  the  most  formidable  of  all  the 
Federalist  pretensions  —  "the  audacious,  barefaced,  and 
sweeping  pretension  to  a  system  of  law  for  the  United 
States,  without  the  adoption  of  their  legislature,  and 
so  infinitely  beyond  their  power  to  adopt." 1  It  was 
not  many  years  before  the  Supreme  Court  abandoned 
the  claim  in  the  form  and  sense  in  which  it  was  orig 
inally  advanced;  but  after  more  than  a  century  the 
chosen  leader  of  Jefferson's  own  party,  in  the  heat  of 
a  campaign  for  the  presidency,  commits  himself  to  this 
so  dangerous  doctrine  —  and  his  successful  opponent 
denies  it ! 2  This  reversal  of  the  attitude  of  the  parties 
throws  a  curious  light  upon  the  charge  of  partisanship 
against  Ellsworth,  which  one  of  his  biographers  prac 
tically  admits  —  and  tries  to  extenuate  by  citing  the 
example  of  Lord  Mansfield.  It  is  a  charge  that  can 
not  be  either  proved  or  disproved. 

1  Writings,  III,  425. 

2  See  the  speeches  and  letters  of  Parker  and  Roosevelt,  accepting  their 
respective  nominations  for  the  presidency  in  1904.     It  seems  curious  that 
in  this  renewal  of  an  old  controversy  more  use  was  not  made  of  Ellsworth's 
charge  in  the  case  of  Williams,  or  of  the  contrary  view  set  forth  in  United 
States  vs.  Hudson  (7  Cranch,  32)  and  still  more  clearly  in  Wheaton  vs. 
Peters  (8  Peters,  591).     The  court's  opinion  in  the  latter  case  contains 
this  language  —  doubtless  a  correct  statement  of  the  law :  "  It  is  clear  that 
there  can  be  no  common  law  of  the  United  States.  .  .  .     When,  therefore, 
a  common  law  right  is  asserted,  one  must  look  to  the  state  in  which  the 
controversy  originated." 


THE   SUPREME   COURT  261 

Whatever  the  truth  of  it,  and  whatever  the  correct 
doctrine  concerning  the  force  of  the  common  law  in  our 
federal  courts,  the  ruling  of  Ellsworth  concerning  per 
petual  allegiance,  though  it  stood  for  many  years,  was 
in  the  end  completely  overthrown.  The  considerations 
that  finally  prevailed  against  it  were  rather  practical  than 
legal.  The  government  found  itself  again  and  again 
convicted  of  the  inconsistency  which  Aristogiton  had 
pointed  out.  It  is  remarkable,  indeed,  that  this  country 
should  so  long  have  succeeded  in  maintaining  a  claim 
upon  its  own  citizens  so  utterly  inconsistent  with  its 
practice  in  freely  naturalizing  the  citizens  and  subjects 
of  other  countries.  After  countless  controversies  in 
which  it  firmly  asserted  its  right  to  protect  naturalized 
immigrants  against  the  laws  of  their  native  lands,  it 
still  hesitated  to  admit  that  any  American  could  throw 
off  his  allegiance.  The  courts  were  quite  as  slow  as  the 
other  departments  of  the  government  to  abandon  our 
contention.  In  1804,  when  the  doctrine  was  again 
discussed  before  the  Supreme  Court,  Marshall,  fol 
lowing  the  example  of  Rutledge,  avoided  a  decision.1 
Gushing,  in  i8o8,2and  Story,  in  i822,3  took  the  same 
course.  A  few  years  later,  Story  did,  however,  recog 
nize  the  general  principle  contained  in  the  common 
law  maxim,  though  without  attempting  "  to  ascertain 
its  precise  nature  and  limits."  4  It  is  not  unnatural  to 
suppose  that  in  this  the  courts  were  influenced  by  the 
stand  of  the  executive  and  the  legislature.  The  final 
abandonment  of  the  whole  contention  did  not  come 

1  In  Murray  vs.  Charming  Betsey,  2  Cranch,  64. 

2  In  Mcllvaine  vs.  Coxe's  Lessees,  4  Cranch,  209. 

3  In  the  case  of  the  Santissima  Trinidad,  7  Wheaton,  268. 

4  In  Inglis  vs.  Sailor's  Snug  Harbor,  3  Peters,  156,  and  in  Shanks  vs. 
Dupont,  ibid.,  242. 


262  OLIVER   ELLSWORTH 

until  some  years  after  the  Civil  War.  In  1868,  the 
United  States  made  with  the  North  German  Confed 
eration  the  first  of  a  series  of  treaties  which  now 
regulate  our  practice  in  all  cases  of  naturalization. 
Two  years  later,  England  also,  by  a  treaty  with  the 
United  States,  and  by  changes  in  her  laws,  accepted 
the  modern  doctrine. 

This  brief  list  comprises  all  the  opinions  of  Chief 
Justice  Ellsworth  that  are  likely  to  be  of  much  interest 
to  a  later  generation.  They  are  too  few  to  warrant 
us  in  any  positive  estimate  of  his  judicial  career,  or 
in  assigning  him  a  distinct  rank  and  station  among 
American  judges.  To  competent  critics,  however, 
they  have  seemed  to  indicate,  taken  with  the  other 
proofs  of  his  ability  and  integrity  and  of  his  extraor 
dinary  industry,  that  if  he  had  been  left  to  devote 
the  rest  of  his  life  to  the  bench  he  would  have  built 
himself  a  great  monument  of  juristic  achievement  and 
of  fame  as  a  judge.  Beyond  question,  his  intellect 
and  his  temperament  were  both  eminently  judicial. 
There  is  no  reason  to  doubt  that  he  found  his  duties 
congenial,  that  they  stimulated  his  ambition,  that  he 
meant  to  give  himself  to  his  great  office  with  the 
same  singleness  of  purpose  he  had  displayed  in  all  the 
others  he  had  held.  At  the  time  of  Adams's  election, 
eleven  electoral  votes  had  been  cast  for  Ellsworth  for 
President,  but  this  hardly  indicates  that  he  himself 
aspired  to  the  presidency,  or  that  those  who  voted  for 
him  had  the  least  expectation  of  ever  seeing  him  at 
the  head  of  the  nation.  Below  that  highest  station  of 
all  there  was  none  of  greater  dignity  than  the  head 
ship  of  the  judiciary,  offering,  as  it  did,  security  of  ten 
ure  and  immunity  from  the  countless  hateful  demands 


THE   SUPREME   COURT  263 

of  politics  which  no  President  escapes.  It  is,  therefore, 
safe  to  say  that  Ellsworth,  who  had  discharged  so  well 
so  many  other  public  responsibilities,  would  not,  had 
he  remained  Chief  Justice,  have  fallen  short  of  his  own 
high  standard  of  public  service.  It  is  also  safe  to  say 
that  if  he,  rather  than  John  Marshall,  had  had  the 
task  of  upholding  the  national  theory  against  the 
separative  tendencies  in  many  of  the  states,  against 
state-rights  Congresses  and  Presidents  and  a  dominant 
state-rights  party,  he  would  have  been  as  firm  as 
Marshall  was.  This  is  not  saying  that  the  republic 
could  well  have  spared  Marshall.  One  may  well  count 
it  an  extremely  fortunate  thing  that  a  Southerner,  and 
not  a  New  England  man,  gave  to  the  national  theory 
its  authoritative  form  and  expression.  Nor  is  it  saying 
that  Ellsworth  equalled  Marshall  either  as  a  states 
man  or  a  jurist.  In  certain  qualities  of  mind  Marshall 
doubtless  surpassed  every  other  American  of  his  time ; 
no  one  could  possibly  have  filled  his  place.  Yet  the 
two  men  had  much  in  common.  They  held  the  same 
general  views  on  all  the  greater  public  questions. 
In  temper,  in  habits  of  life,  in  ideals,  they  were  very 
like.  The  likeness  goes  even  farther.  Few  and 
brief  as  are  Ellsworth's  judicial  opinions,  they  have  a 
tone  and  style  which  strongly  suggest  the  tone  and 
style  of  his  successor.  The  literary  form  of  Ellsworth's 
is,  however,  additionally  distinguished  by  a  quite  un 
equalled  inclination  and  ability  to  pack  his  meaning 
into  the  fewest  possible  words.  His  extraordinary 
terseness  of  phrase  would  of  itself  make  his  style  note 
worthy.  But  it  had  also  the  always  interesting  quality 
that  belongs  to  language  stamped  with  a  personality. 
The  impression  it  invariably  leaves  is  of  energy  and 


264  OLIVER   ELLSWORTH 

power,  of  intellectual  integrity,  of  a  grave  intensity  of 
purpose.  It  reminds  one  of  still  another  American 
statesman's  fashion  with  the  pen.  There  are  turns 
that  set  one  thinking,  not  of  Marshall  only,  but  of 
Lincoln.  We  cannot,  of  course,  regret  that  Ellsworth 
left  the  bench.  We  know  how  the  vacancy  was  filled ; 
we  know,  too,  what  the  work  was  that  he  left  the 
bench  to  do.  But  the  judiciary  was  indeed  fortunate 
if  it  gained  by  such  a  loss. 

The  charge  in  the  case  of  Williams  —  granting  that 
it  reflected  a  conviction  that  was  political  as  well  as 
legal  —  does  not  stand  alone  to  indicate  the  interest 
with  which  the  Chief  Justice  continued  to  follow  the 
political  movements  in  which  as  senator  he  had  been 
so  deeply  concerned.  Party  feeling  under  Adams  had 
not  relaxed  from  the  intensity  it  reached  during  the 
second  term  of  Washington  ;  and  to  the  antagonism 
of  parties  there  was  now  added  the  still  more  bitter 
rancor  of  faction.  Many  Federalists  had  from  the  first 
regarded  Hamilton,  and  not  Adams,  as  their  real 
leader.  Adams,  with  all  his  claims  to  the  gratitude 
of  the  country  and  the  loyalty  of  his  party,  never  had 
inspired  the  enthusiasm  or  won  the  affection  of  his 
following.  He  had  some  foibles  that  displease  men 
more  than  graver  faults.  He  had  neither  the  tact  of 
such  a  man  as  Madison,  nor  the  compelling  genius 
of  Hamilton,  nor  the  subtler  gift  of  Jefferson.  Nega 
tively,  he  was  to  blame  for  the  division  among  the 
Federalists.  Positively,  however,  the  men  about  him, 
and  particularly  the  members  of  his  own  cabinet,  were 
still  more  at  fault.  Apparently,  every  one  of  them  pre 
ferred  Hamilton  to  him,  and  Hamilton  they  followed. 
The  letters  of  Wolcott  and  Timothy  Pickering,  Secre- 


THE   SUPREME   COURT  265 

tary  of  State,  reveal  an  attitude  toward  the  President 
which  makes  one  feel  that  it  was  hardly  honorable  for 
them  to  remain  members  of  his  official  family.  For 
this  state  of  affairs  Hamilton  himself  must  also  be  held 
partly  responsible.  Nothing  else  in  his  career  does 
him  so  little  credit  as  his  behavior  toward  Adams. 
Nor  can  this  judgment  be  averted  either  by  pointing 
out  that  he  had  done  his  utmost  —  resorting  even  to 
questionable  methods  —  to  prevent  the  party  from  mak 
ing  Adams  President,  or  by  arguing  that  he  was  right 
and  Adams  wrong  in  their  differences  over  questions 
of  policy.  The-  history  of  this  old  factional  division 
does  not  inspire  one  with  any  profound  admiration  for 
Adams ;  but  it  leaves  the  reader's  sympathy  with  him, 
rather  than  writh  his  assailants  and  detractors. 

Among  these  were  several  of  Ellsworth's  closest 
friends,  but  there  is  nothing  to  show  that  he  himself 
ever  had  a  part  in  their  merely  factional  activities. 
The  charge  of  partisanship  is  the  strongest  that  can 
be  brought  against  him ;  and  his  was  a  decidedly  mild 
kind  of  partisanship  for  the  times  when  New  England 
ministers  preached  at  Jefferson  as  a  sort  of  anti-Christ, 
and  when  even  that  comparison  would  hardly  have 
conveyed  a  Southern  Democrat's  hostility  to  either 
Hamilton  or  Adams.  The  worst  that  can  be  said  of 
Ellsworth  is,  that  he  defended  the  Sedition  Act  of  1 798, 
and  perhaps  also  the  Alien  Act,  passed  at  the  same 
session,  — two  laws  which,  with  a  new  law  of  naturaliza 
tion,  constituted  the  Federalist  party's  greatest  blun 
der  and  the  chief  cause  of  its  overthrow.  An  undated 
charge  to  a  jury,  which  has  been  taken  for  evidence 
that  he  approved  this  legislation,1  will  hardly  bear  that 

1  Flanders,  191,  after  Wood  Ms. 


266  OLIVER  ELLSWORTH 

construction.  He  does  not  in  this  utterance  refer 
especially  to  either  of  the  acts,  but  merely  insists  upon 
the  government's  right  to  the  loyalty  and  affection  of 
all  classes  of  its  citizens,  gravely  deprecates  the  rest 
less  desire  for  novelty  and  change,  and  protests  with 
a  fully  justified  severity  against  the  foreign  influences 
which  were  operating  to  divorce  the  people  from  the 
government.  The  charge  contains,  moreover,  positive 
evidence  that  the  Alien  and  Sedition  acts  did  not 
suggest  it;  for  it  refers  to  our  "eight  years'  experi 
ment  "  of  the  federal  system  and  must,  therefore,  have 
been  delivered  before  the  summer  of  1798,  when  the 
acts  were  passed.  The  only  real  proof  that  Ellsworth 
approved  of  either  of  them  is  a  private  letter  to  Timo 
thy  Pickering,  written  in  December,  1798,  when  the 
Republicans  in  Congress  were  urging  a  repeal  of  the 
Sedition  Act.1  Two  or  three  letters  of  earlier  dates 
show  also  his  opinion  and  his  feeling  concerning  a 
course  of  events  which  soon  drew  him  from  his  judi 
cial  labors  to  render,  in  the  strange  field  of  diplomacy, 
his  last  great  service  to  his  country. 

Besides  the  factional  division  of  the  Federalists  and 
the  constant  strife  between  the  Federalists  and  the 
Republicans,  the  Adams  administration  was  occupied 
mainly  with  foreign  affairs.  The  contests  of  parties 
and  of  factions,  and  the  rivalries  of  individuals,  them 
selves  turned  chiefly  on  our  relations  with  France  and 
with  England ;  but  from  the  final  acceptance  of  the 
Jay  treaty  the  menace  to  our  neutrality  came  from 
France  rather  than  from  England. 

To  succeed  Monroe,  who  was  thought  much  too 
French  in  his  sympathies  to  be  a  proper  representa- 

1  Post,  p.  270. 


THE   SUPREME   COURT  267 

tive  of  our  interests  at  Paris,  Washington  had  ap 
pointed  Charles  Cotesworth  Pinckney,  a  Federalist. 
Adams  had  been  but  a  few  weeks  President,  and  was 
planning  to  join  with  Pinckney  some  leading  Republi 
can  like  Madison  and  some  important  character  from 
the  East,  and  hoping  thus  to  reach  a  better  under 
standing  with  our  old  ally,  when  the  news  came  that 
the  French  government  had  rejected  Pinckney,  and 
with  very  scant  courtesy.  The  Directory,  which  now 
governed  France,  was  enraged  at  the  Jay  treaty,  it  was 
strengthened  in  its  entire  foreign  policy  by  the  victo 
ries  of  French  arms  under  Napoleon  Bonaparte,  and 
it  was  encouraged  by  the  intemperate  sympathy  of  the 
Democrats  in  America  into  a  persistent  hope  of  some 
how  coercing  the  American  government  out  of  its  new 
friendship  with  England  and  perhaps  out  of  its  neu 
trality.  Behind  this  hope  and  policy  there  may  have 
been  a  sincere  feeling  that  America  owed  to  France 
more  than  the  equal  consideration  which  a  friendly 
neutral  owes  to  a  belligerent,  and  for  that  sentimental 
view  of  the  situation  something  might  perhaps  be  said  ; 
but  there  is  no  defending  the  method  which  the  Direc 
tory  now  took  to  assert  it.  A  claim  of  sentiment 
soon  loses  its  quality  and  its  force  when  it  is  asserted 
by  insults  and  blackmail ;  and  these  ugly  terms  are 
none  too  strong  to  apply  to  the  conduct  of  Talleyrand, 
who  undoubtedly  had  the  Directory  behind  him. 

Angry  as  Adams  was  at  the  treatment  of  Pinckney, 
and  though  the  members  of  the  English  faction  about 
him  were  angrier  still,  he  clung  to  his  plan  of  a  joint 
embassy,  and  in  October,  1797,  John  Marshall,  Pinck 
ney,  and  Elbridge  Gerry  arrived  in  Paris,  with  full 
powers  to  negotiate  a  treaty  of  amity  and  commerce 


268  OLIVER   ELLSWORTH 

not  unlike  the  Jay  treaty  with  England.  They  re 
mained  there  more  than  half  a  year;  but  they  never 
got  beyond  the  first  preliminary  moves  of  a  formal 
negotiation.  The  details  of  their  experience,  which  are 
given  at  length  in  various  books,  and  need  not  here 
be  recounted,  make  up  the  most  exasperating  episode 
in  all  our  diplomatic  history.  It  is  safe  to  say  that  if 
to-day  similar  indignities  were  offered  American  envoys 
in  any  capital  in  Europe,  we  should  instantly  go  to 
war  to  avenge  them.  Talleyrand,  delaying  on  various 
pretexts  the  proper  reception  of  the  embassy,  tried  by 
three  several  go-betweens  to  browbeat  and  cajole  the 
three  Americans  into  bribing  the  Directory  and  into 
pledging  their  government  to  grant  a  money  loan  to 
France.  As  the  envoys  firmly  rejected  his  insulting 
proposals,  he  went  about  to  detach  Gerry,  who  was  a 
Republican  and  seemed  more  pliable  than  the  other 
two,  from  his  Federalist  associates.  When  Marshall 
and  Pinckney  at  length  withdrew  from  the  embassy, 
Gerry  remained  at  Paris,  and  through  him  alone  Tal 
leyrand  again  sought  his  object. 

When  these  extraordinary  proceedings  were  reported 
in  America,  hardly  the  most  extreme  Gallomaniacs 
would  have  had  the  government  keep  Gerry  at  Paris 
or  in  any  way  continue  or  reconstitute  the  embassy. 
The  cabinet  was  for  declaring  war  at  once  —  all  unpre 
pared  as  we  were.  Adams  did  not  recommend  that 
course,  but  in  a  special  message  to  Congress  he  did 
recommend  putting  the  country  in  readiness  for  fight 
ing.  Some  months  later,  having  in  the  meantime 
sent  to  Congress  the  cipher  despatches  in  which  our 
envoys  told  the  story  of  their  mission,  he  indignantly 
declared,  "I  will  never  send  another  minister  to  France 


THE   SUPREME   COURT  269 

without  assurances  that  he  will  be  received,  respected, 
and  honored  as  the  representative  of  a  great,  free, 
powerful,  and  independent  nation."1 

There  followed  an  inspiring  outburst  of  national 
feeling  which  for  some  months  gave  Adams  a  popu 
larity  he  had  never  known  before,  and  which  seemed 
to  assure  his  party  of  a  new  lease  of  power.  Congress 
responded  with  a  series  of  acts  which  broke  off  all 
commercial  intercourse  with  France,  declared  the  old 
treaties  between  the  two  republics  no  longer  binding, 
permitted  American  vessels,  both  of  the  navy  and  the 
merchant  marine,  to  make  reprisals  for  French  depre 
dations,  provided  for  increasing  the  military  and  naval 
forces,  established  a  department  of  the  navy,  and  in 
fact  looked  straight  toward  war  with  France.  Wash 
ington  came  from  his  retirement  to  take  command  of 
the  new  army.  But  the  strife  of  parties  and  factions 
did  not  cease.  The  Republicans,  though  they  took 
for  the  most  part  no  decided  stand  against  measures 
of  defence,  advocated  caution,  and  would  not  concede 
that  the  last  chance  for  an  understanding  with  France 
was  gone.  The  Hamilton  faction  among  the  Federal 
ists,  still  discontent  with  Adams,  forced  him  to  give 
Hamilton  a  military  rank  second  only  to  the  aged 
Washington's  —  planning,  perhaps,  as  Adams  sus 
pected,  to  make  their  leader  the  actual  head  of  the 
army,  in  order  to  his  succeeding  Adams  three  years 
later.  Hamilton  himself,  playing  at  this  time  both 
the  politician  and  the  soldier,  seems  to  have  lost  his 
head.  He  counselled  centralizing  policies  as  radical 
as  those  he  had  advocated  in  the  Constitutional  Con 
vention  ;  he  gave  his  ear  to  a  wild  scheme  of  expan- 

1  "  Messages  and  Papers  of  the  Presidents,"  I,  266. 


270  OLIVER   ELLSWORTH 

sion  by  the  forcible  seizure  of  Spanish  territory  to  the 
southward ;  and  he  failed  completely  in  his  attempt  to 
manage  the  President.  On  the  contrary,  he  and  his 
following  drove  Adams  into  a  fury  of  jealousy  and 
wounded  self-esteem. 

As  if  this  division  in  the  party  were  not  enough  to 
work  its  ruin,  the  Federalist  majority  in  Congress 
chose  this  particular  time  for  an  unwise  assault  upon 
the  liberty  of  speech  and  of  the  press,  and  for  taking 
a  narrow  policy  with  the  foreign-born.  By  a  new 
naturalization  law,  they  extended  to  fourteen  years  the 
term  of  residence  required  of  foreigners  who  desired  to 
become  citizens.  By  the  Alien  Act,  they  empowered 
the  President  to  deport  foreigners  whose  presence  here 
he  might  deem  dangerous  to  our  institutions.  By 
the  Sedition  Act,  they  threatened  with  severe  punish 
ments  any  who  should  combine  to  oppose  government 
measures,  or  should  print  any  matter  with  intent  to 
bring  into  disrepute  the  government  or  its  officials. 

A  final  section  of  this  act  permitted  the  truth  of  any 
such  matter  to  be  offered  as  a  valid  defence,  and  pro 
vided  that  in  all  trials  for  seditious  writings  the  jury 
should  pass  on  the  law  as  well  as  the  facts;  it  was  this 
section  that  Ellsworth  had  particularly  in  mind  when 
he  wrote  to  Secretary  Pickering,  the  following  Decem 
ber,  concerning  the  attacks  on  the  law : l 

"  I  thank  you  for  sending  me  the  charge  of  that 
painstaking  Judge  Addison,  who  seems  to  be  a  light 
shining  in  darkness,  though  the  darkness  compre 
hends  him  not.  He  is  doubtless  correct  in  supposing 
that  the  Sedition  Act  does  not  create  an  offence,  but 
rather,  by  permitting  the  truth  of  a  libel  to  be  given 

1  Jackson  Ms. ;  Flanders,  193-194. 


THE   SUPREME   COURT  271 

in  justification,  causes  that,  in  some  cases,  not  to  be 
an  offence  which  was  one  before.  Nor  does,  it  devise 
a  new  mode  of  punishment,  but  restricts  the  power 
which  previously  existed  to  fine  and  imprison.  But 
as  to  the  constitutional  difficulty,  who  will  say,  negat 
ing  the  right  to  publish  slander  and  sedition  is  abridg 
ing  the  freedom  of  speech  or  of  the  press,  of  a  right 
which  ever  belonged  to  it  ?  or  will  show  us  how  Con 
gress,  if  prohibited  to  authorize  punishment  for  speak 
ing  in  any  case,  could  authorize  it  for  perjury  ?  of 
which  nobody  has  yet  doubted.  If  a  repeal  of  the 
act  is  to  take  place  this  season,  I  think  the  preambles, 
in  order  to  prevent  misapprehensions,  and  withal  to 
make  a  little  saving  for  our  friend  Marshall's  address, 
should  read  thus  :  —  '  Whereas,  the  increasing  danger 
and  depravity  of  the  present  time  require  that  the  law 
against  seditious  practices  should  be  restored  to  its 
former  rigor,  therefore,  &c.'  I  congratulate  you  on 
the  late  success  of  the  British ;  not  that  they  had  not 
power  enough  before,  but  because  the  French  had  too 
much;  and,  besides,  if  the  latter  had  obtained  the 
victory,  they  would  not  have  thanked  God  for  it." 

With  this  defence  of  the  law,  as  good,  perhaps,  as 
any  ever  offered,  Ellsworth  takes,  of  course,  his  share 
of  his  party's  responsibility  for  it.  On  the  question  of 
the  right  course  with  France,  his  position  up  to  this 
time  had  been  decidedly  cautious.  He  had  merely 
communicated  to  Wolcott  his  impression  that  the 
government  should  not  behave  timidly  from  any  fear 
that  the  people,  particularly  the  people  of  New  Eng 
land,  would  not  sustain  vigorous  measures.1  We  have 

1  In  two  letters  written  in  May,  1797,  after  the  news  came  that  Pinckney 
had  been  rejected.  Gibbs,  I,  532,  540. 


272  OLIVER   ELLSWORTH 

no  further  expression  of  his  opinions  until  it  became 
necessary  for  him  to  accept  or  to  decline  the  foremost 
role  in  our  diplomatic  dealings  with  France. 

It  is  hardly  necessary  to  trace  minutely  the  course 
of  events  which  finally  led  Adams  to  call  for  Ells 
worth's  services.  The  President  had  never  ceased 
entirely  to  hope  for  peace,  and  it  soon  began  to  ap 
pear  that  the  French  government,  impressed  by  the 
warlike  tone  of  the  American,  had  come  to  see  its 
mistake.  Talleyrand  detained  Gerry  at  Paris  as  long 
as  he  could,  and  endeavored,  through  him  and  others, 
to  efface  the  impression  made  by  the  treatment  of  our 
envoys.  From  Americans  in  France,  and  from  other 
sources,  there  came  to  Adams  many  evidences  of  the 
change  of  heart  of  the  Directory.  Finally,  through 
M.  Pichon,  charge  d'affaires  at  the  Hague,  Talley 
rand  sent  to  the  American  minister  there,  William 
vans  Murray,  the  assurance  without  which  Adams 
had  declared  that  he  would  never  appoint  another 
minister  to  France. 

When  Murray's  letter  containing  Talleyrand's  mes 
sage  arrived,  Adams,  thoroughly  enraged  with  Ham 
ilton,  and  distrustful  of  his  own  political  household, 
heartily  welcomed  it.  How  far  personal  ambition 
and  personal  resentments  governed  him,  and  how  far 
purely  patriotic  motives,  cannot,  of  course,  ever  be 
determined.  But  on  February  18,  1799,  without  a 
word  to  his  cabinet,  and  to  the  utter  dismay  of  the 
war  party,  he  sent  to  the  Senate  the  nomination 
of  Murray  to  be  minister  to  France,  promising,  how 
ever,  that  the  minister  should  not  proceed  to  Paris 
until  the  French  government  should  agree  to  receive 
him  in  character  and  appoint  a  minister  of  equal  rank 


THE   SUPREME   COURT  273 

to  negotiate  with  him  a  treaty  covering  all  the  contro 
versies  between  the  two  republics. 

To  Hamilton,  who  was  really  at  the  head  of  the 
army,  and  still  more  to  such  consistent  partisans  of 
England  as  Pickering,  Wolcott,  and  Cabot,  this  sud 
den  turn  meant  political  and  personal  discomfiture. 
It  meant  that  the  President  had  resolved  to  be  the 
real  head  of  his  administration ;  and  it  also  vetoed  the 
wide-reaching  schemes  of  national  aggrandizement 
which  had  for  some  time  filled  Hamilton's  mind. 
The  Senate,  which  these  men  really  controlled,  de 
layed  action  on  the  nomination,  and  the  party  leaders 
convinced  Adams  that  he  must  strengthen  his  pro 
posal.  Again  without  consulting  the  cabinet,  he  on 
February  withdrew  the  nomination  of  Murray  to  be 
minister  and  sent,  instead,  the  nomination  of  Oliver 
Ellsworth,  Patrick  Henry,  and  William  vans  Murray 
to  be  envoys  extraordinary  and  ministers  plenipoten 
tiary.  This  nomination  the  Senate  confirmed,  but 
until  the  day  the  envoys  sailed  Pickering,  Wolcott, 
Cabot,  and  their  faction,  including  as  it  did  a  majority 
of  the  cabinet,  were  continually  striving  to  delay  and 
to  defeat  the  mission.  Murray  accepted  his  appoint 
ment  promptly,  and  with  evident  pleasure  ;  Ellsworth 
reluctantly,  and  solely  from  a  sense  of  duty  —  accord 
ing  to  Pickering,  "  from  the  necessity  of  preventing  a 
greater  evil." l  Henry  declined,  pleading  his  advanced 
age,  and  Adams  named  in  his  place  William  R.  Davie 
of  North  Carolina,  who  was,  like  his  colleagues  in  the 
embassy,  a  Federalist. 

Adams  kept  his  word.  While  his  Federalist  oppo 
nents  sought  about  for  means  to  defeat  his  purpose, 

1  Pickering  to  Cabot,  Feb.  26,  1799,  Lodge's  "Cabot,"  233-234. 


274  OLIVER  ELLSWORTH 

he  was  studying  the  course  of  events  in  Europe 
to  make  sure  that  his  envoys  would  be  properly  re 
ceived.  Ellsworth,  meanwhile,  was  attending  to  his 
judicial  duties.  His  friends  of  the  English  faction 
brought  pressure  to  bear  on  him,  but  it  was  not  strong 
enough  to  make  him  reconsider  his  acceptance.  During 
the  spring  and  summer,  and  well  into  the  autumn,  Pick 
ering,  Cabot,  Wolcott,  and  perhaps  other  anti-French 
extremists,  were  in  constant  correspondence  about  the 
embassy.  They,  too,  were  constantly  looking  to  Europe, 
hoping  that  the  instability  of  the  French  government  or 
the  defeat  of  the  French  armies,  perhaps  the  restoration 
of  the  Bourbons,  might  deter  Adams  from  resuming 
negotiations  with  the  Directory.  But  when  it  came  to 
reading  the  signs  of  European  politics  Adams  had  an 
advantage  over  his  opponents.  From  his  long  residence 
in  Europe  he  understood  better  than  they  the  forces 
playing  in  that  field.  He  showed,  therefore,  as  always, 
plenty  of  confidence  in  his  own  judgment.  At  the  end 
of  July,  a  letter  from  Talleyrand  brought  the  assurances 
he  had  required.  But  the  news  of  the  revolution  of 
Third  Prairial,  which  reconstituted  the  Directory, 
coming  about  the  same  time,  caused  the  President 
more  hesitation.  Meanwhile,  however,  he  and  Picker 
ing  were  at  work  on  the  letter  of  instructions  to 
the  envoys ;  and  a  draft  of  this  document  reached 
Ellsworth  in  September,  while  he  was  on  the  eastern 
circuit. 

Ellsworth's  position  was  extremely  delicate.  Be 
tween  the  President,  on  the  one  hand,  and  his  friends 
of  the  English  faction  —  Wolcott,  Pickering,  Cabot, 
King,  Hamilton  —  on  the  other,  he  felt  the  strain  of 
two  contending  loyalties.  His  friends  were  urging 


THE   SUPREME   COURT  275 

him  to  advise  the  President  to  give  up  the  mission. 
He  himself  inclined  to  agree  with  them,  and  he  looked 
forward  with  anything  but  pleasure  to  the  voyage  to 
France.  Yet  he  would  not  shirk  his  duty.  u  This 
excellent  man,"  Pickering  wrote  of  him  to  Cabot, 
"  when  he  was  here  in  August,  saw  no  alternative  but 
he  must  go.  The  subsequent  changes  in  Europe,  and 
especially  in  France,  I  think,  must  change  his  ideas. 
I  wish  you  would  write  him  upon  it,  and  propose  his 
attempting  to  dissuade  the  President  from  the  pursuit. 
I  also  will  write  him.  There  is  nothing  in  politics  he 
more  dreads  than  the  mission,  and  nothing  in  nature 
he  more  dreads  than  the  voyage  across  the  wide 
Atlantic."1 

A  few  days  later,  Cabot  wrote  to  Pickering : 2 

"  If  anything  could  be  done  at  this  hour,  it  would  be 
by  an  able  display  of  the  subject  in  a  private  letter  to 
Ellsworth,  which  might  engage  him  to  expostulate 
strongly  with  the  President,  and  refuse  to  go." 

And  the  next  day,  having  received  Pickering's 
letter,  Cabot  wrote  again:3 

"  I  had  written  to  Mr.  Ellsworth  through  the  me 
dium  of  Governor  Trumbull,  and  received  his  answer 
before  your  suggestion.  I  rejoice  to  find  he  thinks 
practically  as  we  do  on  the  general  merits." 

Ellsworth's  own  letters  show  that  he  favored  a  post 
ponement  ;  but  they  show  also  that  he  was  already,  in 
his  usual  businesslike  way,  studying  the  requirements 

1  September  13,  Lodge's  "  Cabot,"  237.  "  I  am  told  the  Chief  Justice  goes 
sorely  against  his  will.     The  whole  measure  is  very  nauseous  to  the  friends 
of  the  government?     Rufus  King  to  Troup,  "  Life  and  Correspondence 
of  Rufus  King,"  III,  92. 

2  September  22,  Lodge's  "  Cabot,"  238. 
8  Ibid.,  242. 


276  OLIVER   ELLSWORTH 

of  his  new  role.  On  September  17,  he  writes  to 
Pickering : 1 

"  I  have  this  day  written  a  letter  to  the  President 
from  which  he  will  easily  collect  my  opinion  concern 
ing  a  temporary  suspension  of  the  mission  to  France, 
tho'  I  have  endeavored  to  write  in  a  manner  that 
would  not  give  offense."  The  letter  to  the  President 
ran  as  follows : 2 

"SiR:  If  the  present  convulsion  in  France,  and 
symptoms  of  a  greater  change  at  hand,  should  induce 
you,  as  many  seem  to  expect,  to  postpone  for  a  short 
time  the  mission  to  that  country,  I  wish  for  the  earliest 
notice  of  it.  The  Circuit  Court  in  this  state  and  Ver 
mont  fell  through  last  spring  from  the  indisposition  of 
Judge  Chase,  and  must  now  fall  through  from  the  in 
disposition  of  Judge  Cushing,  unless  I  attend  them.  I 
am  beginning  the  Court  here,  and  should  proceed  to 
Vermont,  if  I  was  sure  of  not  being  called  on,  in  the 
meantime,  to  embark.  It  is,  Sir,  my  duty  to  obey,  not 
advise,  and  I  have  only  to  hope  that  you  will  not 
disapprove  of  the  method  I  take  to  learn  the  speediest 
intimation  of  yours." 

Rather  to  Ellsworth's  surprise,  the  President's  reply 
indicated  that  he  also  felt  it  best  to  wait.3  The 
recent  change  in  France,  and  the  prognostics  of  a  still 
greater  change,  would  certainly,  he  said,  induce  him  to 
postpone  the  mission  for  a  longer  or  shorter  time ;  and 
he  indicated  that  the  envoys  would  probably  sail  on 
October  20  or  November  i.  The  substance  of  this 
letter  of  the  President  Ellsworth  sent  at  once  to 
Pickering4  —  a  procedure  which  shows  clearly  enough 

1  Flanders,  226-227.  3  Adams  wrote  on  September  20.    Gibbs,  II,  265. 

2  Ibid.,  226.  *  Flanders,  228. 


THE  SUPREME   COURT  277 

the  peculiar  relation  between  Adams  and  his  own 
cabinet  members.  October  i,  Ellsworth  wrote  to 
Wolcott 1  that  as  Judge  Gushing  had  relieved  him 
from  the  Vermont  circuit,  and  the  President  had  post 
poned  the  mission  for  a  month,  he  had  time  to  sit 
down  and  think ;  and  he  thought  the  distracted  pros 
pects  of  Europe,  and  of  America  also,  had  begun  to 
brighten  —  a  view  which  he  commended  to  his  gloomy 
correspondent.  The  cabinet,  encouraged,  perhaps,  for 
much  the  same  reasons,  urged  the  President  to  come 
on  from  his  home  in  Massachusetts  for  a  conference  at 
Trenton,  N.J.,  whither  the  government  departments 
had  been  moved,  Philadelphia  being  threatened  with 
yellow  fever.  Pickering,  who  wrote  for  his  fellows, 
told  Adams  that  Davie  had  already  come  to  Tren 
ton,  and  that  Ellsworth  would  also  doubtless  soon  be 
coming,  and  would  certainly  be  gratified  to  accom 
pany  the  President.  But  when  Adams,  on  his  way  to 
Trenton,  stopped  at  Windsor  and  called  on  Ellsworth 
at  Elmwood,  neither  guest  nor  host  spoke  of  this 
suggestion.  Some  years  later,  Adams  wrote  of  the 
interview:2  "On  my  way  I  called  upon  Chief  Justice 
Ellsworth,  at  his  seat  in  Windsor,  and  had  a  conversa 
tion  of  perhaps  two  hours  with  him.  He  was  perfectly 
candid.  Whatever  should  be  the  determination,  he 
was  ready  at  an  hour's  warning  to  comply.  If  it  was 
thought  best  to  embark  immediately  he  was  ready.  If 
it  was  judged  more  expedient  to  postpone  it  for  a 
little  time,  though  that  might  subject  him  to  a  winter 
voyage,  that  danger  had  no  weight  with  him.  If  it 
was  concluded  to  defer  it  to  the  spring,  he  was  willing 
to  wait.  In  this  disposition  I  took  leave  of  him.  He 

1  Gibbs,  II,  266-267.  2  Works,  IX,  252. 


278  OLIVER   ELLSWORTH 

gave  me  no  intimation  that  he  had  any  thought  of  a 
journey  to  Trenton."  Yet  two  days  later  Ellsworth 
wrote  to  Pickering : l  "  I  was,  the  evening  before  last, 
honored  with  a  call  from  the  President  of  half  an  hour ; 
but  nothing  passed  respecting  my  going  to  Trenton. 
I  have,  notwithstanding,  presumed  to  write  him  by  this 
day's  mail,  as  follows:  Since  you  passed  on,  I  have 
concluded  to  meet  Governor  Davie  at  Trenton,  which 
he  probably  will  expect,  and  which,  besides  putting  it 
in  our  power  to  pay  you  our  joint  respects,  and  to  re 
ceive  as  fully  any  communication  of  your  views  as  you 
may  wish  to  make,  may  enable  me  to  accompany  him 
eastward,  should  you  continue  inclined  to  such  suspen 
sion  of  our  mission  as,  under  present  aspect,  universal 
opinion,  I  believe,  and  certainly  my  own  would  justify. 
It  is  a  matter  of  some  regret,  Sir,  that  I  did  not  con 
sult  you  on  the  proposition  of  this  visit ;  but  if  I  err, 
experience  has  taught  me  that  you  can  excuse.  Gov 
ernor  Davie  will  doubtless  arrive  before  me,  and  I  hope 
will  be  made  comfortable  and  easy.  It  will  be  Thurs 
day  evening  or  Friday  morning  next  before  I  shall 
have  the  pleasure  of  seeing  you  and  him." 

One  may  feel  that  Ellsworth's  conduct  at  this  point 
was  a  trifle  disingenuous  ;  but  he  committed  no  dis 
loyal  act,  he  broke  faith  with  no  one.  Adams  does 
not  condemn  him.  On  the  contrary,  he  twice  declares 
that  Ellsworth's  conduct  throughout  all  this  business 
was  perfectly  proper.  His  precautions  were  no  more 
than  so  great  a  matter  required. 

At  Trenton,  Ellsworth  found  not  only  Adams, 
Davie,  and  the  cabinet,  but  Alexander  Hamilton, 
and  the  whole  episode  came  at  once  to  its  crisis. 

1  Flanders,  229 ;  Adams's  Works,  IX,  37. 


THE   SUPREME   COURT  279 

The  opponents  of  the  mission  drew  strength  from  the 
news  from  Europe  —  that  the  British  had  landed  in 
Holland,  that  the  Dutch  fleet  had  been  captured, 
that  the  Russian  general,  Suwarrow,  had  won  a  victory 
over  the  French  in  Switzerland.  From  these  portents 
they  again  augured  the  fall  of  the  Directory  and  the 
restoration  of  the  Bourbons.  At  any  rate,  they  urged, 
we  ought  again  to  postpone  action.  It  was  the  old 
Directory,  not  the  new,  that  had  given  us  the  assur 
ances  we  asked  for.  Talleyrand  himself  was  out  of 
power.  This  reasoning  Adams  heard  from  nearly  all 
about  him.  Even  Hamilton  called  to  press  it  upon 
him.  But  he  saw  the  European  situation  more 
clearly  than  any  of  his  advisers,  and  he  did  not  for 
bear  to  take  account  of  considerations  closer  to  his 
own  dignity.  "  I  transiently  asked  one  of  the  heads 
of  departments,"  he  says,1  "  whether  Ellsworth  and 
Hamilton  had  come  all  the  way  from  Windsor  and 
New  York  to  persuade  me  to  countermand  the  mis 
sion."  He  accordingly  held  to  his  purpose.  He 
invited  Ellsworth  and  Davie  to  dinner,  and  they 
discussed  the  embassy  with  perfect  freedom.  "At 
table,"  he  relates,2  "  Mr.  Ellsworth  expressed  an  opin 
ion  somewhat  similar  to  that  of  the  Heads  of  Depart 
ments,  and  the  public  opinion  at  Trenton.  *  Is  it 
possible,  Chief  Justice/  said  I,  '  that  you  can  seri 
ously  believe  that  the  Bourbons  are,  or  will  be  soon, 
restored  to  the  throne  of  France  ? '  '  Why/  said  Mr. 
Ellsworth,  smiling,  '  it  looks  a  good  deal  so.'  *  I  should 
not  be  afraid  to  stake  my  life  upon  it,  that  they  will 
not  be  restored  in  seven  years,  if  they  ever  are/  was 
my  reply.  And  then  I  entered  into  a  long  detail 

1  Adams's  Works,  IX,  299.  2  Ibid.,  254. 


280  OLIVER   ELLSWORTH 

of  my  reasons  for  this  opinion.  They  would  be  too 
tedious  to  enumerate  here,  and  time  has  superseded 
the  necessity  of  them.  The  result  of  the  conversa 
tion  was,  that  Mr.  Davie  was  for  embarking  imme 
diately,  as  he  always  had  been  from  his  first  arrival, 
and  Mr.  Ellsworth  declared  himself  satisfied,  and  will 
ing  to  embark  so  soon  as  I  pleased." 1 

At  a  cabinet  meeting  on  October  15,  the  instructions 
took  their  final  shape,  and  early  the  next  morning 
the  President  gave  order  that  the  envoys  should  set 
sail  not  later  than  November  i.  November  3,  Ells 
worth  and  Davie  embarked  at  Newport  in  the  frig 
ate  United  States,  whose  captain  was  ordered  to 
land  them  at  any  French  port  they  might  prefer, 
and  to  touch  previously  at  any  port  which  they  might 
designate.  They  chose  to  touch  first  at  Lisbon,  and 
on  the  27th  of  November  the  frigate  sailed  into  the 
Tagus.  Learning  that  Napoleon  had  overthrown  the 
Directory  and  made  himself  practically  supreme  in 
France,  they  lingered  a  fortnight  at  the  Portuguese 
capital,  and  then  set  sail  again,  this  time  for  L'Orient 
in  France.  But  a  great  storm  drove  the  vessel  far  out 
of  her  course,  and  after  days  and  nights  of  terror  and 
suffering  for  all  on  board  she  finally  put  in  at  Arras, 
on  the  coast  of  Spain,  near  Corunna.  Sending  for 
ward  the  news  of  their  arrival,  and  again  requesting 

1  Works,  IX,  254.  One  would  infer  that  this  was  before  Adams  ordered  the 
departure  of  the  envoys  ;  but  Gibbs  (II,  273)  states  that  the  dinner  occurred 
after  the  order  had  been  given.  October  24,  Pickering  wrote  to  Cabot : 
"  Some  communication  took  place  Thursday  with  the  envoys,  who  dined 
with  the  President  (after  the  point  had  been  decided),  when  many  strange 
ideas  were  broached.  I  heard  Judge  Ellsworth  recite  a  part,  but  had  no 
patience  to  hear  the  remainder  and  went  away.  It  was  at  Wolcott's  the 
same  evening."  Lodge's  "  Cabot,"  249. 


THE   SUPREME   COURT  281 

assurances  concerning  their  reception,  the  envoys  set 
off  from  Corunna  overland  to  Paris. 

Ellsworth  emerged  from  the  battered  frigate  a 
physically  broken  man.  Seasickness  and  the  other 
hardships  of  the  two  passages  had  permanently 
deranged  his  constitution.  The  land  journey  over 
a  poverty-stricken  region  of  Spain  proved  almost 
equally  trying.  He  was  never  again  to  know  his  old 
strength  and  energy  of  body.  But  his  intellect  was 
still  undimmed,  his  will  unshaken.  Fisher  Ames 
was  reckoning  rightly  when  he  wrote  to  Pickering, 
"  I  rely  on  Mr.  E.,  as  much  as  any  man  can,  to  watch 
the  foe,  and  to  parry  the  stroke  of  her  dagger." l 

1  Nov.  15,  1799,  Ames's  Works,  I,  261. 


CHAPTER   VII 

PARIS 

AT  Burgos,  Ellsworth  and  Davie  met  their  return 
ing  messenger.  He  brought  them  their  passports ; 
and  from  Talleyrand,  who  was  again  at  the  head  of 
the  French  department  of  foreign  affairs,  he  brought 
a  letter  which  assured  them  of  a  proper  reception  at 
Paris.  Bonaparte,  on  coming  into  power,  had  at  once 
decided  in  favor  of  seeking  the  friendship  of  America. 
Apparently,  he  was  already  planning  to  draw  the 
United  States  into  a  commercial  union  with  the  north 
ern  states  of  Europe  against  Great  Britain.  Talley 
rand  accordingly  wrote  to  the  envoys  that  they  were 
"expected  with  impatience,  and  would  be  received 
with  warmth."  Pushing  on,  therefore,  with  confidence, 
they  reached  Paris  on  the  evening  of  March  the  second. 

Oliver  Ellsworth,  Jr.,  a  young  graduate  of  Yale, 
who  had  come  with  the  embassy  as  private  secretary 
to  his  father,  recorded  in  his  diary  some  of  the  inci 
dents  of  the  mission  and  some  of  the  impressions 
which  the  Paris  of  the  consulate  made  upon  these 
American  visitors.  The  morning  after  their  arrival, 
it  seems,  they  had  to  endure  the  first  ceremonial  of 
their  mission.  According  to  the  established  custom 
in  Paris,  the  young  diarist  relates,  a  deputation  of  the 
market  women  waited  upon  them.  Warned  by  the 
maltre  d'hbtel  that  the  women  would  make  trouble  if 
they  did  not  receive  a  money  present,  Ellsworth  and 
Davie  consented  to  see  them;  and  two  of  the  sister- 

282 


PARIS  283 

hood  were  accordingly  conducted  to  a  hall  where  the 
envoys,  dressed  in  black,  sat  solemnly  awaiting  them. 
One  of  the  women  presented  a  large  nosegay,  they 
both  offered  congratulations,  and  for  a  climax  of  their 
welcome  they  gave  Ellsworth  and  Davie  "  the  double 
embrace  on  each  cheek."  This  honor  the  two  envoys 
reciprocated  with  a  gift  of  two  guineas  to  each  of 
their  visitors.  As  the  women  were  middle-aged, 
stout,  and  red-faced,  the  younger  Ellsworth  was  quite 
content  that  his  private  station  permitted  him  to  be 
a  mere  spectator  of  the  exercises. 

Pages  of  his  diary  are  given  to  accounts  of  the 
places  he  visited  and  the  entertainments  he  attended 
—  all  set  down  in  the  most  matter-of-fact  manner,  and 
accompanied  with  observations  that  reflect  a  serious, 
sensible,  but  quite  unimaginative  and  unpoetical  mind. 
At  the  opera,  the  young  man  thought  that  only  a 
corrupted  taste  could  relish  what  he  saw  and  heard. 
Attending  a  masquerade,  he  concluded  that  in  such  a 
gathering  "  many  intrigues  are  probably  carried  on." 
With  similar  common-sense  remarks  he  records  the 
celebration  of  the  decade  at  Notre  Dame, — an  affair 
of  "  music,  marriages,  and  the  covering  of  the  heads 
of  boys  and  girls  with  garlands," — the  annual  April 
parade  of  the  Parisians  to  Longchamp,  and  the  exer 
cises  on  the  anniversary  of  the  fall  of  the  Bastille.  A 
fortnight  after  his  arrival,  he  got  his  first  glimpse  of 
Napoleon.  There  was  a  grand  review  of  seventeen 
thousand  troops  on  the  Champs  de  Mars.  After  de 
scribing  it,  the  diary  proceeds : 

"  Bonaparte  himself  reviewed  them,  attended  by  a 
number  of  his  generals;  as  well  as  I  could  judge  from 
a  view  of  him  riding  on  horseback,  he  is  a  middle- 


284  OLIVER   ELLSWORTH 

sized  man,  thin,  spare  body,  and  pale  face,  dark  eyes 
and  short  hair  of  black  color ;  his  dress  and  appear 
ance  were  plain;  two  gentlemen  (the  American  Am 
bassadors,  who  had  seen  him  at  an  audience  in  the 
palace)  thought  he  resembled  Mr.  Jay  in  appearance, 
one  of  them  likewise  observing  he  had  much  gravity 
in  his  face  as  well  as  covered  cunning  or  sagacity." 

The  audience  of  the  envoys  with  the  young  con 
queror  was  on  March  8,  in  the  hall  of  the  ambassadors 
in  the  Tuileries.  Only  tradition  informs  us  of  what 
occurred.  Napoleon,  it  is  said,  fairly  dazzled  Ellsworth, 
who  afterward  declared  that  no  other  man  ever  had 
given  him  so  vivid  an  impression  of  mental  power. 
The  first  consul,  as  his  wont  was,  discharged  at  the 
envoy  a  rapid  fire  of  questions,  which  were  so  search 
ing  and  intelligent,  and  showed  such  a  clear  compre 
hension  of  all  the  issues  between  the  two  countries, 
that  Ellsworth,  though  himself  a  rapid  thinker  and 
talker,  was  hard  put  to  it  to  frame  suitable  replies. 
Tradition  also  has  it  that  Napoleon,  on  first  catching 
sight  of  Ellsworth's  grave,  firm  face,  had  said  to  some 
one,  "  We  must  make  a  treaty  with  this  man."  l  But 
according  to  the  secretary  of  Governor  Davie,  it  was 
he  —  a  man  of  fine  appearance  and  courtly  manners  — 
with  whom  Napoleon  was  most  favorably  impressed ; 
so  favorably,  indeed,  that  he  treated  Davie  as  if  he,  and 
not  Ellsworth,  were  the  real  head  of  the  embassy.2 

Ill  and  worn  as  he  was,  Ellsworth  took  little  pleas 
ure  in  his  sojourn  in  France.  His  life  there  was  quite 
unlike  the  highly  entertaining  experiences  of  Franklin 

1  Wood  and  Jackson  Mss. 

2  Fordyce  M.  Hubbard,  "  Life  of  Davie,"  in  Sparks's  Library  of  Ameri 
can  Biography,  XV,  124-125. 


PARIS  285 

and  of  Gouverneur  Morris.  He  had  neither  the  incli 
nation  nor  the  strength  for  social  distractions.  There 
are  no  glimpses  of  him  at  fine  parties  or  engaged  in 
bouts  of  repartee  with  sprightly  ladies.  Doubtless, 
however,  he  did  enjoy  the  opportunity  to  discuss  with 
eminent  Frenchmen  those  great  problems  of  the  right 
ordering  of  political  societies  with  which  the  peoples 
of  France  and  of  the  United  States  had  both  been 
wrestling.  With  Talleyrand,  who  had  been  in  Amer 
ica,  he  had  one  day  a  long  conversation  on  the  sub 
ject  of  free  government  and  the  French  experiment  in 
democracy.  In  the  course  of  it,  Talleyrand  asked  the 
broad  question,  How  France  should  proceed  in  order 
to  develop  stable  republican  institutions  like  those 
of  the  United  States  ?  Ellsworth's  reply  was  what  a 
chief  justice  might  be  expected  to  give.  For  a  first 
step,  he  said,  establish  a  supreme  judicial  tribunal, 
made  up  of  the  best  and  oldest  judges  to  be  found, 
and  pay  them  salaries  that  will  free  them  from  all 
temptations  to  accept  bribes  and  from  all  dependence 
on  the  government.  Once  it  is  known  and  felt  that 
in  that  court  all  have  equal  rights,  lower  courts  of  a 
like  character  will  be  easily  established,  and  other 
institutions  will  follow.  Talleyrand  agreed,  but 
declared  that  his  countrymen,  always  in  a  hurry, 
would  never  wait  upon  so  slow  a  process.1  To  Vol- 
ney,  the  philosopher,  with  whom  also  he  had  some  talks 
about  government,  and  who  had  worked  out  an  elabo 
rate  system  for  France,  Ellsworth  presented  the  old 
objection  to  all  Utopian  schemes.  "  There  is  one 
thing,"  he  said,  "  for  which  you  have  made  no  provi 
sion, —  the  selfishness  of  man."2 

1  Wood  Ms.  2  Ibid. 


286  OLIVER   ELLSWORTH 

Apart  from  such  serious  interchanges  with  the  fa 
mous  men  whom  he  encountered,  Ellsworth  seems  to 
have  given  his  time  and  strength  wholly  to  his  duties. 
As  he  and  Davie  had  found  Murray  awaiting  them 
at  Paris,  the  American  envoys  saw  no  reason  why  the 
negotiations  should  not  begin  at  once  ;  and  Napoleon, 
far  from  following  the  tactics  of  the  Directory,  waived 
all  objections  to  their  letters  of  credence  and  promptly 
named  three  ministers  on  the  part  of  France:  his 
brother  Joseph,  Roederer,  who  was  counsellor  of  state, 
and  Fleurieu,  who  had  been  minister  of  marine.  These 
appointments  were  regarded  as  decidedly  compliment 
ary  to  the  United  States.  Joseph  Bonaparte  falling 
ill,  the  first  meeting  of  the  commission  was  not  held 
until  April  2,  when  powers  were  exchanged ;  but  at 
this  point  Napoleon  again  showed  a  conciliatory  dispo 
sition.  As  the  powers  of  the  French  ministers  seem 
ingly  extended  only  to  a  negotiation  on  the  subjects 
of  controversy,  not  to  the  conclusion  of  a  treaty,  the 
Americans  thought  them  insufficient ;  and  the  First 
Consul  at  once  issued  a  new  instrument  at  which  there 
could  be  no  cavil.  As  he  departed  soon  afterward  for 
the  second  campaign  in  Italy,  he  can  scarcely  have 
found  time  for  any  further  attention  to  America  until, 
by  a  new  series  of  victories  in  battle,  he  had  won  for 
France  another  interval  of  security  from  her  European 
enemies.  But  his  victories  against  Europe  had  also  a 
potent  bearing  on  the  whole  question  of  the  relations 
between  France  and  America.  After  Marengo,  Ells 
worth  and  his  colleagues  could  no  longer  entertain  the 
notion  that  they  might  soon  see  the  consulate  share 
the  fate  of  the  Directory,  and  perhaps  the  Bourbons 
restored.  Deeply  impressed,  on  the  contrary,  by  the 


PARIS  287 

genius  of  Napoleon  and  the  ever  rising  prestige  of 
France,  they  became  convinced  that  any  arrangement 
not  inconsistent  with  the  honor  of  their  country  would 
be  preferable  to  war.  Perhaps  it  would  be  more 
accurate  to  say  that  they  grew  more  than  ever  anx 
ious  to  secure  peace ;  for  the  relations  between  the 
United  States  and  France  had  been  for  nearly  two 
years  little  better  than  a  state  of  undeclared  war. 

For  this  the  United  States  could  be  held  responsible 
only  on  the  broad  ground  that  they  had  no  right  to 
remain  neutral  while  France  was  at  war  with  England, 
nor  to  conclude  the  Jay  treaty.  Up  to  the  summer  of 
1798,  these  two  policies  of  the  American  government 
had  constituted  substantially  the  entire  grievance  of 
France.  Congress  and  the  President  had  then  added 
the  various  measures  of  retaliation  naturally  provoked 
by  the  continued  depredations  of  France  upon  our  com 
merce  and  her  contemptuous  responses  to  our  efforts 
for  an  understanding. 

By  the  old  treaty  of  alliance,  we  had  promised 
France  succor  in  war ;  and  by  the  treaty  of  commerce, 
besides  other  favors  and  privileges,  we  had  guaranteed 
all  her  possessions  in  America  and  bound  ourselves, 
whenever  she  should  be  at  war,  to  open  our  ports  to 
her  privateers  and  prizes,  and  close  them  to  those  of 
her  enemies.  These  were  the  principal  compensations, 
apart  from  the  discomfiture  of  England,  that  France 
had  received  for  the  aid  which  she  gave  to  America 
during  the  Revolution ;  and  France  held  both  Wash 
ington's  proclamation  of  neutrality  and  the  Jay  treaty 
with  England  to  be  plain  breaches  of  faith.  If  the 
agreements  with  her  still  held,  then  certainly  we  had 
no  right  to  grant  to  England  exclusively,  as  we  did  in 


288  OLIVER   ELLSWORTH 

the  Jay  treaty,  the  freedom  of  our  ports  for  her  priva 
teers  and  prizes.  It  was,  in  fact,  impossible  to  justify 
our  course  if  we  conceded  that  our  promises  of  1778 
were  still  fully  binding  in  1 793  and  in  1 796,  and  that 
they  applied  to  the  war  between  France  and  England. 
But  the  friends  of  England  in  America  had  argued 
from  the  first  that  in  this  particular  war  France  was  the 
aggressor,  and  that  the  old  alliance  bound  us  only  in 
case  she  were  on  the  defensive.  They  might  have 
cited  also  a  declaration  made  by  Genet,  immediately 
after  his  arrival  in  America,  and  afterward  confirmed 
by  Talleyrand,  that  France  did  not  expect  the  United 
States,  in  this  instance,  to  execute  the  defensive  clauses 
of  the  treaty  of  alliance.  To  these  excuses  for  Amer 
ica's  neutrality,  France  herself  had  soon  contributed 
another.  Even  before  the  Jay  treaty,  and  before  the 
Directory  came  into  power,  the  Revolutionary  govern 
ment  had  entered  on  a  policy  quite  inconsistent  not 
merely  with  the  actual  treaties  between  the  two  re 
publics  but  with  the  ordinary  obligations  of  belliger 
ents  to  neutrals.  By  a  succession  of  decrees,  it  had 
endeavored  to  injure  England,  and  to  supply  its  own 
needs,  at  the  expense  of  neutral  commerce.  It  had 
treated  as  contraband  all  provisions  and  all  enemy's 
goods  found  on  neutral  vessels.  It  had  authorized  the 
impressment  and  forced  sale  of  such  cargoes  of  neutral 
vessels  visiting  French  ports  as  the  committee  of  pub 
lic  safety  might  desire.  By  declaring  an  embargo  at 
Bordeaux,  it  had  detained  there  for  a  year  a  large 
number  of  American  merchantmen.  It  had  caused 
the  seizure  and  imprisonment  of  many  American  sea 
men  on  the  pretext  that  they  were  British  subjects. 
Moreover,  its  official  agents  had  failed  to  pay  for  great 


PARIS  289 

quantities  of  supplies  purchased  in  America.  In  1 794, 
when  Monroe  went  to  Paris,  he  found  pending  a 
multitude  of  claims  for  damages  to  Americans  inflicted 
in  these  various  ways. 

After  the  Jay  treaty,  the  Directory  had  taken  still 
more  high-handed  measures.  One  of  these  was  to 
revive  certain  old  Revolutionary  ordinances  treating  as 
a  pirate  every  neutral  vessel  not  supplied  with  a  role 
d' equipage —  a  ship's  register  of  a  form  not  known 
in  America  and  countersigned  by  a  public  official 
who  had  no  counterpart  in  our  system  —  and  requir 
ing  also  a  sea  letter,  which  no  American  vessel 
carried.  A  thoroughgoing  enforcement  of  these 
rules  would  have  subjected  to  seizure  the  crew  of 
every  American  merchant  vessel  afloat.  The  climax 
came  with  a  decree  that  subjected  to  capture  and 
confiscation  all  neutral  vessels  in  whose  cargoes 
there  should  be  found  anything  whatever  of  British 
production.  A  declaration  of  war  would  hardly  have 
given  to  the  navy  and  privateers  of  France  any 
greater  freedom  with  the  property  of  Americans  on 
the  ocean.  And  the  practice  of  the  navy  and  the 
courts  of  France  had  been  even  worse  than  the  letter 
of  the  decrees. 

The  instructions  to  the  American  envoys  bade  them 
insist  on  some  provision  for  reparation  for  these  out 
rages  as  an  absolutely  indispensable  condition  of  a 
peaceable  agreement.  Ellsworth,  who  had  been  con 
sulted  freely  both  by  Adams  and  Pickering  while  they 
were  preparing  the  instructions,1  had  approved  this  de 
cision  ;  but  he  had  successfully  opposed  Pickering's 

1  "I  am  glad  you  have  sent  a  copy  to  the  Chief  Justice.  I  had  several 
conversations  with  him  last  winter  on  the  whole  subject.  He  appears  to 


290  OLIVER   ELLSWORTH 

apparent  desire  to  put  into  the  American  contention 
so  severe  a  reflection  on  the  course  of  France  that  the 
French  government  could  not  with  self-respect  have 
entertained  our  proposals.  What  Pickering  had  de 
signed  may  be  inferred  from  this  note  of  Ellsworth, 
written  in  September,  ijgg:1 

"  Having  given  your  draught  of  instructions  such 
perusal  as  the  hurry  and  pressure  of  a  court,  crowding 
two  terms  into  one,  admits  of,  I  remark,  with  all  the 
freedom  you  invite,  that  to  insist  that  the  French  gov 
ernment  acknowledge  its  orders  to  be  piratical,  or,  which 
is  the  same,  absolutely  engage  to  pay  for  the  depreda 
tions  committed  under  them,  is,  I  believe,  unusually 
degrading,  and  which  would  probably  defeat  the  nego 
tiation  and  place  us  in  the  wrong.  The  alternative  of 
insisting  that  the  fifth  commissioner  shall  be  a  foreigner, 
is  more  than  was  insisted  with  Great  Britain,  and  a 
ground,  as  I  apprehend,  hardly  sufficient  to  risk  failure 
upon,  though  an  eligible  arrangement  to  attempt.  The 
style  of  the  instructions  is  certainly  nowhere  heightened 
beyond  the  provocation  received ;  yet  in  some  few  in 
stances,  which  will  readily  occur  to  you  on  revision,  is 
more  spirited,  as  it  seems  to  me,  than  can  be  necessary 
to  impress  the  envoys,  or  than,  in  the  event  of  publica 
tion,  would  be  evidential  of  that  sincerity  and  concilia- 

me  to  agree  most  perfectly  with  me  on  every  point  of  our  policy  towards 
France  and  England  ;  and  this  policy  was  founded  only  in  perfect  purity  of 
moral  sentiment,  natural  equity,  and  Christian  faith  towards  both  nations. 
I  am,  therefore,  under  no  hesitation  in  sending  the  draught  to  him.  .  .  . 
Indeed,  Mr.  Ellsworth  is  so  great  a  master  of  business,  and  his  colleagues 
are  so  intelligent,  that  I  should  not  be  afraid  to  allow  them  a  greater  latitude 
of  discretion,  if  it  were  not  unfair  to  lay  upon  them  alone  the  burden  of  the 
dangerous  responsibility  that  may  accompany  this  business."  Adams  to 
Pickering,  Sept.  19,  1799.  Adams's  Works,  IX,  31. 
1  Flanders,  236-237. 


PARIS  291 

tory  temper  with  which  the  business  should  appear  to 
be  conducted." 

Two  weeks  later,  he  wrote  again  in  favor  of  modify 
ing  the  conditions  in  respect  of  the  French  decrees 
and  the  fifth  commissioner.1  In  their  final  form,  the 
instructions  defined  clearly  those  cases  of  captures  and 
condemnations  of  American  property  which  were  held 
to  be  illegal  and  for  which  compensation  was  demanded, 
and  set  forth  in  some  detail  the  American  view  of  the 
conduct  of  France.  At  the  end  were  seven  ultimata. 
There  must  be  a  board  of  claims  to  determine  damages, 
and  France  must  bind  herself  to  pay ;  there  must  be 
no  guaranty  to  France  of  any  part  of  her  dominions ; 
there  must  be  no  promise  of  a  loan  or  of  aid  in  any 
other  form ;  prior  treaties  with  other  countries,  includ 
ing  the  Jay  treaty,  must  be  fully  respected  ;  there  must 
be  no  grant  of  power  to  French  consuls  of  a  nature  to 
permit  them  to  set  up  in  America  tribunals  incom 
patible  with  the  complete  sovereignty  of  the  United 
States;  the  new  treaty  must  not  run  for  more  than 
twelve  years.2 

It  required  less  than  Ellsworth's  ordinary  shrewd 
ness  to  perceive  quickly  that  there  was  no  hope  of 
securing  a  treaty  which  should  meet  all  these  re 
quirements  of  his  government.  He  and  his  col 
leagues,  in  their  opening  note,  named  two  main 
objects  of  the  negotiation:  to  provide  for  the 
claims  of  each  party  for  damages  inflicted  by  the 
other,  and  to  frame  a  new  commercial  agreement. 
But  the  ministers  of  France,  in  their  reply,  held  that 
the  first  step  should  be  to  agree  upon  the  principles 

1  Flanders,  237-238. 

2  For  the  instructions,  see  American  State  Papers,  II,  301-306. 


292  OLIVER   ELLSWORTH 

to  govern  the  awards  of  damages,  and  the  second, 
to  secure  the  enforcement  of  the  treaties  already  in 
existence.  They  also  expressed  surprise  that  France 
had  received  no  assurance  of  the  repeal  of  the  retalia 
tory  acts  which  Congress  had  passed  in  1 798.  This 
first  interchange  disclosed  clearly  enough  the  true  de 
sires  of  both  parties.  Many  other  points  were  after 
ward  taken  up,  but  the  Americans  were  always  trying 
to  secure  damages  without  renewing  the  treaties ;  and 
the  Frenchmen  were  trying  to  renew  the  treaties  with 
out  any  binding  agreement  concerning  damages. 

It  has  always  been  supposed  that  Ellsworth  directed 
the  negotiation  for  his  side,  and  the  style  of  the  cor 
respondence,  grave,  weighty,  and  condensed,  with  now 
and  then  a  passage  of  dry  humor  or  sarcasm,  bears 
out  the  tradition.1  A  clear  contrast  has  been  noted 
between  the  diplomatic  methods  of  the  Americans  and 
that  of  the  ministers  of  France.  The  Americans  took 
much  pains  to  sustain  all  their  specific  contentions, 
and  in  general  to  prove  their  country  in  the  right. 
They  seemed  at  times  to  suppose  that  the  justice  of  a 
claim  sufficiently  commended  it.  One  finds  repeatedly 
in  their  communications  a  note  of  entire  sincerity. 
They  have  been  criticised,  in  fact,  for  trying  to  inject 
moral  ideas  into  a  discussion  in  which  the  other  party 
kept  in  mind  nothing  but  the  main  chance.  The 
French  commissioners  did  not  by  any  means  neglect 
to  argue  their  case  or  fail  to  dilate  on  the  good  faith 
and  magnanimity  of  their  country ;  they  several  times 

1  The  entire  correspondence  is  given  in  the  journal  of  the  embassy,  in 
American  State  Papers,  III,  307-345.  This  is  my  authority  for  the  present 
account  of  the  negotiation,  except  as  other  sources  are  mentioned.  It 
seems  hardly  worth  while  to  give  page  references  to  the  journal  for  specific 
statements. 


PARIS  293 

succeeded  in  this  way  in  putting  the  Americans  rather 
absurdly  on  the  defensive.  But  they  plainly  regarded 
the  whole  correspondence  as  a  dicker.  The  object  of 
it,  they  considered,  was  not  to  e&taMfe&Mjustice,  but  to 
adjust  interests;  in  a  word,  to  strike  a  bargain.  It 
would  be  absurd  to  suppose  that  the  Americans,  expe 
rienced  men  of  the  world,  childishly  ignored  that  point 
of  view.  The  difference  was  only  of  degree.  But 
they  did  endeavor  to  harmonize  interests  with  morality 
and  law.  The  Frenchmen,  not,  apparently,  distracted 
by  any  such  desire,  were  superior  in  finesse,  and  in 
turning  to  advantage  every  favorable  factor  in  the 
situation.  One  of  their  devices  was  delay,  for  they 
could  not  fail  to  note  the  eagerness  and  the  growing 
uneasiness  of  the  other  side.  About  the  middle  of 
April,  Talleyrand  fell  ill,  and  for  a  month  they  made 
this  an  excuse  for  dilatory  tactics. 

On  April  9,  the  American  commissioners,  to  expe 
dite  the  business,  had  submitted  various  specific 
articles  which  they  desired  to  incorporate  in  a  new 
treaty  of  commerce.  These  included  a  provision  for 
aboard  of  claims,  all  claims  that  had  arisen  before  July 
8,  1798,  to  be  adjudicated  according  to  the  old  treaties, 
and  all  later  claims  to  be  adjudicated  according  to  the 
law  of  nations.  After  a  fortnight  the  Frenchmen 
replied,  again  insisting  that  the  old  treaty  of  commerce 
was  still  in  force,  and  objecting  to  the  distinction 
between  the  two  classes  of  claims.  The  Americans 
had  already  written  home  that  they  would  be  hard- 
pressed  to  revive  that  treaty,  at  least  so  far  as  to  con 
cede  its  anteriority  to  the  Jay  treaty;  but  in  their 
next  communication  to  the  French  ministers  they 
incorporated,  nevertheless,  the  remaining  heads  of 


294  OLIVER   ELLSWORTH 

their  proposals.  They  waited  in  vain  for  any  further 
answer  until  near  the  end  of  May.  On  May  23,  they 
were  informed  at  a  conference  that  the  negotiation  on 
the  part  of  France  had  come  to  a  standstill.  The 
First  Consul's  instructions  having  made  the  revival  of 
the  old  treaties  a  sine  qua  non,  nothing  more  could 
be  done  until  he  had  passed  on  the  American  pro 
posals.  Fearful  of  his  decision,  Ellsworth  and  his 
colleagues  quickly  resolved  to  modify  one  of  their 
articles.  They  proposed  that  in  the  future  neither 
country  should  open  its  ports  to  the  privateers  and 
prizes  of  a  third  power  unless  they  should  first  have 
guaranteed  the  same  favor  to  each  other.  A  month 
of  silence  followed.  Early  in  June,  Joseph  Bonaparte 
slipped  away  to  Italy  to  submit  everything  to  Na 
poleon.  On  June  14  came  the  battle  of  Marengo.1 
July  3,  Napoleon  himself  returned  to  Paris.  There 
after,  the  American  envoys  felt,  behind  every  move  of 
the  other  side,  his  controlling  mind  and  purpose. 

On  July  n,  Joseph  Bonaparte,  at  a  dinner  at  his 
own  house,  announced  that  the  First  Consul  would 
never  consent  to  pay  indemnities  on  any  other  basis 
than  the  old  treaties,  nor  make  any  new  treaty  that 
should  not  at  least  place  France  on  a  footing  of  equal 
ity  with  Great  Britain.  Four  days  later,  the  Ameri 
cans  proposed  that  indemnities  be  ascertained  as  in 
their  project  of  a  treaty,  but  that  payments  be  withheld 

1  "  A  gentleman,  who  saw  Mr.  Ellsworth  the  end  of  June,  informs  me 
that  he  expressed  an  opinion  that  it  was  best  he  and  his  colleagues  should 
be  where  they  were  ;  that  Austria  probably  would  make  peace  and  England 
perhaps  would  not  continue  the  war  after  the  summer  campaign  ends ; 
that  if  all  others  should  adjust  their  differences,  and  our  own  remain 
unsettled,  we  might  find  it  difficult  to  obtain  terms  that  were  just  and  rea 
sonable."  Cabot  to  Wolcott,  Lodge's  "  Cabot,"  290. 


PARIS  295 

until  the  United  States  should  offer  France  an  agree 
ment  concerning  privateers  and  prizes  similar  to  that 
of  1778  —  a  move  which  they  saw  plainly  did  not 
produce  a  pleasant  impression.  The  response  to  it, 
delayed  until  August  n,  on  the  ground  that  the  other 
side  was  still  waiting  for  instructions,  took  the  form  of 
two  alternative  offers.  France  would  renew  the  old 
treaties  and  provide  for  indemnities;  or  she  would 
consent  to  abrogate  the  old  treaties,  and  make  a  new 
one  unattended  with  indemnities,  insisting  only  that  it 
should  place  her  on  an  equal  footing  with  England. 
Ellsworth  and  his  colleagues,  having  pondered  the 
entire  situation,  now  wrote  to  Pickering  that  they 
must  either  abandon  the  negotiation  or  depart  from 
their  instructions. 

Believing,  however,  that  if  they  failed  to  secure  an 
agreement  for  indemnities  the  failure  would  be  final, 
they  tried  their  ingenuity  on  a  series  of  proposals 
looking  to  a  modified  renewal  of  the  treaties.  They 
were  met  in  every  instance  by  counter  proposals  which, 
however  worded,  always  either  left  open  a  way  for 
France  to  escape  from  paying  indemnities  or  else 
coupled  the  payment  with  concessions  which  the 
United  States  would  find  it  impossible,  or  at  any  rate 
extremely  distasteful,  to  make.  Seeing  that  the  nego 
tiation  was  again  coming  to  a  deadlock,  the  Ameri 
cans  then  made  up  their  minds  to  test  the  sincerity 
of  the  original  French  offer  to  pay  indemnities  on 
the  renewal  of  the  treaties.  They  considered  care 
fully  the  extent  to  which  their  country  was  bound  by 
her  engagements  with  England,  and  indulged  them 
selves  in  what  seems  a  bit  of  rather  sharp  casuistry. 
Their  reasoning,  as  set  forth  in  their  final  report, 


296  OLIVER   ELLSWORTH 

turned  chiefly  on  the  rule  of  priority  in  respect  of 
conflicting  international  agreements,  and  moved  in  a 
kind  of  circle  to  the  conclusion  which  they  wished 
to  establish.  The  rule  being  always  understood,  they 
argued,  it  could  be  no  breach  of  faith  to  make  with 
one  power  a  treaty  inconsistent  with  an  existing  treaty 
with  another.  The  Jay  treaty  expressly  bound  both 
the  contracting  parties  to  forbear  from  making  with  any 
other  country  any  engagement  inconsistent  with  the 
mutual  guarantee  concerning  privateers  and  prizes  in 
time  of  war.  If,  therefore,  the  United  States  should 
now  make  such  an  engagement  with  France,  it  would 
be  understood  with  the  limitation  that  it  did  not  extend 
to  a  case  in  which  Great  Britain  should  be  the  enemy. 
The  instructions  to  the  American  envoys  bade  them 
make,  if  they  should  consent  to  renew  that  clause  of 
the  treaty  of  commerce  of  1778  which  bore  on  priva 
teers  and  prizes,  a  special  saving  of  Great  Britain's 
rights ;  but  the  rule  of  construction  would  save  those 
rights  without  any  stipulation.  Besides,  it  was  a 
question  of  renewing  old  treaties  with  France,  not 
of  making  new  ones.  Since  such  renewals  constitute 
the  usual  method  of  terminating  hostilities,  no  com 
mitment  with  another  nation  could  conceivably  forbid 
them.  The  uniform  usage  in  such  cases  implied  that 
hostilities  did  not  destroy  preexisting  treaties,  but  only 
suspended  their  operation.  The  acts  of  Congress  in 
1798  had  really  brought  about  a  state  of  war  with 
France.  The  present  negotiation  ought,  therefore,  to 
be  regarded  as  making  peace  by  restoring  the  sus 
pended  agreements.  Moreover,  there  should  be  no 
difficulty  about  Great  Britain,  for  in  1792  Lord  Malmes- 
bury  had  offered  France,  in  a  project  of  a  peace 


PARIS  297 

treaty,  the  same  exclusive  rights  in  British  ports  that 
France  now  demanded  in  the  ports  of  the  United 
States.  "  The  foregoing  considerations,"  the  envoys 
wrote  in  their  report,  "  induced  the  undersigned  to  be 
unanimously  of  the  opinion  that  any  part  of  the 
former  treaties  might  be  renewed  consistently  with 
good  faith." 

On  September  6,  they  accordingly  made  their  most 
advanced  overture.  They  offered  to  renew  the  old 
treaties  in  full,  on  three  conditions.  For  the  mutual 
guarantee  of  succor  in  the  treaty  of  alliance  there 
should  be  substituted  an  agreement  to  furnish  aid 
in  a  certain  amount  of  money  or  provisions ;  indem 
nities  should  be  provided  for,  and  all  captured  prop 
erty  not  yet  condemned  should  be  at  once  restored ;  at 
the  exchange  of  ratifications,  the  United  States  should 
have  the  option,  by  giving  up  the  provision  for  indem 
nities,  to  get  rid  of  all  the  obligations  of  the  treaties, 
save  that  each  of  the  parties  should  continue  to  have, 
for  its  men  of  war,  privateers,  and  prizes,  such  rights 
in  the  ports  of  the  other  as  the  most-favored  nation 
might  enjoy.  At  a  conference  on  September  12, 
when  the  commission  went  over  these  proposals  with 
the  closest  scrutiny,  the  ministers  of  France  made  an 
avowal  which  Ellsworth  and  his  colleagues  afterward 
dryly  pronounced  "  quite  unnecessary."  They  avowed 
that  their  real  object  from  the  beginning  had  been 
to  avoid  by  every  means  the  payment  of  indemnities. 
France,  they  confessed,  was  in  fact  unable  to  pay. 
Joseph  Bonaparte  went  farther  still,  and  declared  that 
if  his  government  should  order  him  and  his  colleagues 
to  make  a  treaty  on  the  basis  of  indemnities  and  modi 
fied  renewal  of  the  old  treaties,  he  would  resign  sooner 


298  OLIVER   ELLSWORTH 

than  obey.  The  Americans,  retiring  for  a  few  minutes, 
agreed  that  it  was  useless  to  make  any  more  proposals. 

Their  original  mission  had  plainly  ended  in  failure. 
They  might  at  once  have  asked  for  their  passports, 
gone  home,  and  received  an  honorable  discharge. 
But  if  they  could  not  compass  their  errand,  they 
could,  they  believed,  serve  their  country  in  another 
way.  If  they  could  not  secure  reparation  for  past 
injuries,  they  could  perhaps  prevent  a  recurrence  of 
like  molestations  in  the  future.  Abandoning  the 
project  of  a  treaty,  they  decided  to  propose  a  tempo 
rary  arrangement  which  should  at  least  make  an  end 
of  a  state  of  affairs  that  could  otherwise  end  only  in 
war.  The  next  day,  accordingly,  they  wrote  to  the 
French  commissioners : 

"  The  discussion  of  former  treaties  and  of  indemni 
ties  being  for  the  present  closed,  it  must,  of  course,  be 
postponed  until  it  can  be  resumed  with  fewer  embar 
rassments.  It  remains  only  to  consider  the  expediency 
of  a  temporary  arrangement.  Should  such  an  arrange 
ment  comport  with  the  views  of  France,  the  following 
principles  are  offered  as  the  basis  of  it: 

"  i.  The  ministers  plenipotentiary  of  the  respective 
parties,  not  being  able  at  present  to  agree  respecting 
the  former  treaties  and  indemnities,  the  parties  will  in 
due  and  convenient  time  further  treat  on  these  sub 
jects  ;  and,  until  they  have  agreed  respecting  the  same, 
the  said  treaties  shall  have  no  operation.  In  the  mean 
time, 

"  2.  The  parties  shall  abstain  from  all  unfriendly 
acts;  their  commercial  intercourse  shall  be  free,  and 
debts  shall  be  recoverable  in  the  same  manner  as  if 
no  misunderstanding  had  intervened. 


PARIS  299 

"  3.  Property  captured  and  not  yet  definitely  con 
demned,  or  which  may  be  captured  before  the  ex 
change  of  ratifications,  shall  be  mutually  restored. 
Proofs  of  ownership  to  be  specified  in  the  conven 
tion. 

"4.  Some  provisional  regulations  shall  be  made  to 
prevent  abuses  and  disputes  that  may  arise  out  of 
future  cases  of  capture." 

The  ministers  of  France  responded  with  reason 
able  promptness.  On  September  19,  there  was  a 
conference ;  and  at  conferences  held  from  day  to  day 
the  new  proposals  were  carefully  explored.  Joined 
with  certain  articles  of  the  treaty  originally  offered, 
they  gradually  took  shape  in  a  convention  covering 
all  fresh  difficulties  likely  to  arise.1  Having  for  the 
time  being  escaped  indemnities,  the  French  minis 
ters  consented  to  leave  the  old  treaties  in  abeyance, 
it  being  agreed  that  the  two  countries  would  again 
negotiate  concerning  indemnities  and  treaties  "  at  a 
convenient  time."  They  likewise  accepted  the  Ameri 
can  contention  on  various  other  important  points  that 
had  been  in  controversy.  The  convention  in  fact 
secured  for  America  much  more  than  England  had 
conceded  in  the  Jay  treaty.  It  rescued  all  the  ships 
and  other  property  that  had  been  taken  but  not  yet  defi 
nitely  condemned.  It  ended  the  old  difficulty  about 
the  role  (Tequipage  by  providing  for  a  uniform  pass 
port,  to  be  used  by  both  countries.  It  guaranteed  all 
debts  owed  by  the  government  or  by  individuals  of 
either  republic  to  the  government  or  individuals  of 

1  Napoleon  himself  insisted  on  calling  it  a  convention  instead  of  a 
"provisional  treaty,"  telling  Roederer  that  there  were  times  to  disregard 
forms  but  that  this  was  a  time  to  pay  strict  attention  to  them.  "  CEuvres 
de  Roederer"  (Paris,  1854,  printed  by  his  son,  A.  M.  Roederer),  III,  336. 


300  OLIVER   ELLSWORTH 

the  other.  It  secured  freedom  of  trade  between  the 
contracting  parties,  and  it  freed  the  trade  of  America 
with  Great  Britain  from  all  those  irregular  restraints 
with  which  France  had  hampered  and  harassed  it. 
So  far  from  assenting  to  the  French  contention 
about  provisions  and  enemy's  goods,  it  declared  that 
only  arms,  ammunition,  and  implements  fit  for  the 
use  of  troops  should  be  treated  as  contraband,  and 
that  in  the  case  of  all  other  cargoes  free  ships 
should  mean  free  goods.  It  carefully  regulated  the 
procedure  of  captures,  so  as  to  prevent  wanton  de 
struction  of  property.  In  a  word,  it  accomplished 
the  entire  design  of  Ellsworth  and  his  colleagues 
when  they  decided  to  stay  in  Paris  and  propose  a 
temporary  arrangement. 

On  October  3,  this  instrument  was  completed,  and 
Ellsworth  had  finished  his  last  great  service  to  the 
United  States.  It  had  proved,  doubtless,  the  most 
trying  of  them  all.  Apart  from  the  tax  on  his 
waning  strength,  the  long  absence  from  his  home, 
and  the  sojourn  in  a  strange  country  which  he  did 
not  like,  he  had  the  melancholy  experience  of  Jay  to 
warn  him  that  he  need  not  expect  the  gratitude  of  his 
countrymen.  He  also  knew  well  enough  that  he  was 
likely  to  disappoint  and  anger  his  closest  party  friends. 

His  letters  home  have  a  certain  effect  of  resignation. 
The  tone  of  them  is  that  of  a  strong  man,  fearfully 
exhausted,  but  resolute  and  faithful.  From  Burgos, 
he  had  written  to  his  son  Martin : l 

"  Distant  as  you  are  from  me,  my  dear  boy,  you  are 
not  a  day  out  of  my  mind,  nor  can  I  ever  think  of  you 

1  Feb.  10,  1800.  For  a  copy  I  am  indebted  to  Mr.  G.  E.  Taintor  of 
Hartford. 


PARIS  301 

without  the  most  ardent  wishes  for  your  welfare.  I 
hope  and  trust,  that  you  make  the  best  improvement 
of  your  time,  and  that  while  you  are  preparing  to  live 
and  act  your  part  well  in  this  world,  you  will  not  for 
get  that  there  is  another  to  prepare  for." 

Two  letters  from  Paris  to  his  twin  children,  Billy 
and  Harry,  aged  eight,  are,  it  is  true,  playfully  affec 
tionate.  The  first  runs : 

"  Daddy  is  a  great  way  off,  but  he  thinks  about  his 
little  boys  every  day ;  and  he  hopes  they  are  very  good 
boys,  and  learn  their  books  well,  and  say  their  prayers 
every  night,  and  then  God  will  love  them  as  much  as 
Daddy  does. 

"  There  are  a  good  many  fine  things  here,  and  a  great 
many  strange  things.  Oliver  writes  them  down,  and 
he  will  have  enough  to  tell  the  boys  twenty  nights. 

"  The  Robbers  came  round  the  house  where  Daddy 
lives  the  other  night  and  the  Gardener  shot  off  his  two 
barrel  gun  and  killed  two  of  them.  And  Daddy  be 
lieves,  if  the  Robbers  come  into  his  room,  they  will  get 
killed,  for  he  keeps  a  gun  and  two  pistols  charged  all 
the  time.  And  when  he  comes  home  he  intends  to 
give  his  gun  to  Martin,  and  his  pistols  to  Billy  and 
Harry." 

And  in  the  second  he  actually  drops  into  rhyme: 

"  The  men  in  France  are  lazy  creatures, 

And  work  the  women  and  great  dogs, 
The  Ladies  are  enormous  eaters, 

And  like  the  best,  toadstools  and  frogs. 

"  The  little  boys  are  pretty  spry 

And  bow  when  Daddy's  paid  them, 
But  don't  think  they  shall  ever  die, 
Nor  can  they  tell  who  made  them. 


302  OLIVER   ELLSWORTH 

"  But  Daddy's  boys  are  not  such  fools, 

And  are  not  learned  so  bad, 
For  they  have  Mamma  and  good  schools, 
And  that  makes  Daddy  glad. 

"  Daddy  won't  forget  them  pistols." 1 

But  the  only  letter  to  his  wife  is  as  solemn  as  it  is 
brief.  "  I  shall  leave  France  next  month,"  he  wrote,  "  let 
our  business,  which  is  still  unfinished,  terminate  as  it 
may.  If  it  please  God  that  I  see  my  family  and  friends 
once  more,  I  shall  certainly  love  them  better  than  ever."2 

After  the  convention  was  signed,  he  wrote  to  his 
brother  David : 3 

"  Altho'  our  best  and  long  continued  efforts  have 
not  obtained  all  that  justice  required,  yet  enough  is 
finally  done,  if  our  government  should  approve  of  and 
ratify  it,  to  restore  peace  to  our  country,  —  to  make 
some  saving  of  the  property  which  has  been  wrong 
fully  taken  from  us,  —  to  guard  against  further  in 
juries,  as  well  as  they  can  be  guarded  against  by 
engagements,  and  to  disentangle  our  country  from 
its  former  alliance  and  connections  with  France. 

"  I  know  you  will  be  much  disappointed  at  my  not 
returning  this  fall ;  but  the  gravel  and  the  gout  in  my 
kidneys,  which  constantly  afflict  me,  forbid  my  under 
taking  a  voyage  in  a  cold  and  boisterous  season  of  the 
year.  I  hope  that  by  going  to  a  mild  climate  in  the 
South  of  France  to  spend  the  winter,  and  by  being 
freed  from  the  anxiety  and  perplexity  of  business, 

1  Neither   of  these  two  letters    is  dated.      Both  copied  by  Mr.  W. 
Irving  Vinal  from  originals  in  the  possession  of  Mrs.  Waldo  Hutchins. 

2  Jackson  Ms.  Copied  from  the  collection  of  Mr.  Teft  of  Savannah.    As 
the  collector  added  the  signature  from  another  source,  there  may  have 
been  more  in  the  original. 

3  From     Havre,   Oct.    10,    1800.      Copy    furnished    by    Mr.    G.    E. 
Taintor. 


PARIS  303 

which  has  much  increased  my  complaint,  that  I  shall 
be  able  by  the  opening  of  the  Spring  to  return  with 
out  hazard.  .  .  . 

"  I  pray  God  to  preserve  your  health,  and  that  of 
your  family,  and  to  grant  that  in  due  time  we  may 
again  meet  and  rejoice  together." 

And  to  Wolcott: 

"  You  will  see  our  proceedings  and  their  result.  Be 
assured  more  could  not  be  done  without  too  great  a 
sacrifice,  and  as  the  reign  of  Jacobinism  is  over  in 
France,  and  appearances  are  strong  in  favor  of  a 
general  peace,  I  hope  you  will  think  it  was  better  to 
sign  a  convention  than  to  do  nothing.  Sufferings  at 
sea,  and  a  winter's  journey  through  Spain,  gave  me  an 
obstinate  gravel,  which,  by  wounding  the  kidneys,  has 
drawn  and  fixed  my  wandering  gout  to  those  parts. 
My  pains  are  constant,  and  at  times  excrilciating ;  they 
do  not  permit  me  to  embark  for  America  at  this  late 
season  of  the  year,  nor,  if  there,  would  they  permit  me 
to  discharge  my  official  duties.  I  have,  therefore,  sent 
my  resignation  of  the  office  of  chief  justice,  and  shall, 
after  spending  a  few  weeks  in  England,  retire  for 
winter  quarters  to  the  South  of  France. 

"  I  pray  Mrs.  Wolcott  to  accept  of  my  best  respects, 
and  shall  ever  remain,  dear  sir,  your  affectionate 
friend." 1 

1  From  Havre,  October  16.  Gibbs,  "  Administrations  of  Washington 
and  John  Adams,"  II,  434.  To  Pickering,  probably  at  the  same  time,  he 
wrote :  "  My  best  efforts  and  those  of  my  colleagues  have  not  obtained 
all  that  which  justice  required,  or  which  the  policy  of  France  should  have 
given.  Enough  is  however  done,  if  ratified,  to  extricate  the  United  States 
from  a  contest  which  it  might  be  as  difficult  to  relinquish  with  honour,  as 
to  pursue  with  a  prospect  of  advantage.  A  partial  saving  is  also  made  for 
captured  property,  goods  are  provided  against  future  abuses  as  well 
perhaps  as  they  can  be  by  stipulations,  and  our  country  is  disentangled 


304  OLIVER   ELLSWORTH 

Having  heard,  apparently,  that  Adams  had  dismissed 
Pickering,  and  that  Wolcott  had  contemplated  resign 
ing,  Ellsworth  added  a  pbstscript,  than  which  he  never 
wrote  or  said  anything  more  expressive  of  his  own  high 
standard  of  patriotism.  ;; 

"You  certainly  did  well  not  to  resign,  and  you  must 
not  think  of  resigning  let  what  changes  may  take  place, 
at  least  till  I  see  you.  Tho'  our  country  pays  badly, 
it  is  the  only  one  in  the  world  worth  working  for.  The 
happiness  it  enjoys,  and  which  it  may  increase,  is  so 
much  superior  to  what  the  nations  of  Europe  do  or 
ever  can  enjoy,  that  no  one  who  is  able  to  preserve  and 
increase  that  happiness  ought  to  quit  her  service  while 
he  can  remain  in  it  with  bread  and  honour.  Of  the 
first,  a  little  suffices  you,  and  of  the  latter,  it  is  not  in 
the  power  of  rapine  or  malevolence  to  deprive  you. 
They  cannot  do  without  you  and  dare  not  put  you 
out.  Remember,  my  dear  friend,  my  charge  —  keep 
on  till  I  see  you." 

To  resign  his  own  great  judicial  office  must  have 
cost  Ellsworth  a  struggle.  He  took  the  step  solely 
because  of  his  broken  health.  The  opposition  at 
home  criticised  him  for  holding  the  place  while  en 
gaged  with  other  duties  in  a  foreign  land,  but  his 
predecessor,  Jay,  had  done  the  same  thing,  and  his 
successor,  John  Marshall,  after  accepting  the  appoint 
ment  to  the  bench,  continued  to  act  as  Secretary  of 
State  down  to  the  very  last  moment  of  the  Adams 
administration.1 

from  its  former  connexions.  ...  I  hope  you  will  think  it  better  to  do 
this,  than  to  have  done  nothing."  Quoted  in  a  letter  of  Pickering  to 
Wolcott.  Ibid.,  463. 

1  In  the  Pyne-Henry  Collection  in  the  Princeton  University  Library 
there  is  a  letter  from  Ellsworth,  dated  March  17,  1802,  which  seems  to 


PARIS  305 

Ellsworth  would  doubtless  have  preferred  to  leave 
Paris  as  quietly  and  as  quickly  as  possible.  But  the 
French  government  had  no  mind  to  let  the  long  nego 
tiation  come  to  an  end  without  making  some  senti 
mental  use  of  the  occasion.  Napoleon  was  still  bent  on 
conciliating  America;  and  it  need  not  be  doubted  that 
the  restoration  of  friendly  relations  appealed  to  a  genu 
ine  sentiment  in  the  hearts  of  many  Frenchmen.  The 
First  Consul  had  remained  uniformly  gracious  to  the 
envoys.  Besides  other  attentions,  he  made  Ellsworth  a 
gift  of  a  costly  piece  of  Gobelin  tapestry,  and  with  a  truly 
French  cognizance  of  his  one  vice  presented  him  also 
with  a  gold  snuff-box.  Prompted,  perhaps,  by  the 
government,  Joseph  Bonaparte  now  tendered  the  three 
Americans  an  elaborate  entertainment.  The  occasion 
is  thus  described  in  the  diary  of  Oliver  Ellsworth,  Jr. : 1 

"  October  3d  the  American  commissioners  left  Paris 
for  Mortfontane,  a  village  perhaps  18  miles  north 
of  Paris;  to  which  village  they  with  their  suite  had 
been  pressingly  invited  by  Joseph  Bonaparte  (one  of 
the  French  ministers)  to  assist  at  a  fete,  before  going 
to  embark  at  Havre  de  Grace.  To  this  village  we 

indicate  that  he  was  required  to  refund  his  salary  as  Chief  Justice  from  the 
time  of  his  appointment  as  envoy,  and  that  he  was  allowed  only  three 
months  to  return  home  after  signing  the  convention.  He  points  out  in 
this  letter  that  after  he  accepted  the  appointment  as  envoy  he  travelled  the 
southern  circuit  and  performed  other  judicial  duties  out  of  his  turn,  that  by 
arrangement  certain  of  his  associates  performed  his  circuit  duties  in  his 
absence,  that  the  Supreme  Court  had  a  quorum  without  him,  and  that,  as 
the  signing  of  the  convention  was  a  preliminary  step,  unauthorized  by  his 
commission,  it  left  the  commission  still  unexecuted,  and  he  might  have  been 
justified  in  waiting  in  Europe  to  see  if  his  government  would  acquiesce. 

For  a  copy  of  this  letter  I  am  indebted  to  Mr.  W.  W.  Bishop  of  the 
Princeton  Library. 

1  Flanders,  254-256,  gives  the  extract,  but  not  so  nearly  verbatim  as  in 
the  text.  See  Thiers,  "Consulate  and  Empire,"  II,  247-248. 


306  OLIVER   ELLSWORTH 

arrived  about  two  o'clock  P.M.,  where  we  found  a 
large  number  of  the  magistrates  of  the  French  gov 
ernment  collected  in  Joseph  Bonaparte's  chateau.  The 
First  Consul  Bonaparte  arrived  here  about  4  o'clock 
P.M.,  cannon  firing  and  music  playing  upon  his 
entrance  into  the  chateau.  During  the  afternoon,  the 
company  amused  itself  in  the  gardens  or  pare  attached 
to  the  chateau,  which  are  in  English  style,  affording 
picturesque  views.  Behind  the  chateau  a  canal,  etc., 
etc. ;  in  the  front  at  a  small  distance  a  pare  with  rocky 
and  barren  hills  topped  by  an  ancient  tower  on  one 
side,  a  large  natural  pond  interspersed  with  islands  in 
the  bottom  of  the  plot,  and  fine  cultivated  sides  of  hills 
in  other  parts. 

"In  the  evening,  after  the  final  signature  of  the 
treaty  by  the  French  and  American  ministers,  it  was 
presented  for  ratification  to  the  First  Consul,  upon 
which  occasion,  about  8  in  the  evening,  cannon  were 
fired  to  announce  the  ratification.  About  nine  the 
company  of  perhaps  150  were  conducted  to  a  supper 
prepared  in  three  salles  or  halls.  The  principal,  called 
Union  Hall,  was  superbly  illuminated,  hung  with  ver 
dant  wreaths  and  many  inscriptions  to  the  memory  of  the 
4th  of  July,  1776,  and  other  periods  and  places  cele 
brated  by  important  actions  in  America  during  the 
struggle  for  independence.1  Among  these  inscriptions, 

1  "  In  the  Hall  of  the  Union  shields  placed  over  crossed  swords  were 
arranged  at  intervals.  On  one  shield  one  read  :  Lexington  ;  on  another, 
4  July,  1776,  American  Independence;  on  a  flag  folded  under  this  last,  one 
read  :  Hancock ;  on  another  shield  one  saw  two  fasces  united  and  the 
initials  of  France  and  of  America,  F  and  A ;  on  one  of  the  flags,  Warcen 
(Warren?).  One  shield  bore  On  the  9  Vendemiaire year  IX  (date  of  the 
signing  of  the  convention).  A  little  farther  on  was  written :  Putnam.  .  .  . 
One  shield  was  consecrated  to  9  October,  1781,  York  Town"  Journal  de 
Paris,  quoted  in  Roederer,  VI,  419. 


PARIS  307 

besides  frequently  the  letters  F,  A,  i.e.  France  and 
America,  were  the  views  of  the  federal  city  of  Phila 
delphia  and  Havre  de  Grace,  the  port  from  which  the 
American  ministers  were  to  embark,  and  what  is 
curious  the  representation  of  an  angel  flying  with 
the  olive  branch  from  Havre  de  Grace  to  Philadel 
phia.  The  second  hall,  called  Salle  de  Washington, 
was  adorned  with  Washington's  bust,  the  French  and 
American  flag  side  by  side,  etc.  The  third,  i.e.  Salle 
de  Franklin,  had  Franklin's  bust,  etc.  The  intention 
of  these  decorations  seemed  to  be  the  commemoration 
principally  of  the  American  independence,  and,  from 
the  toasts  given  at  the  table,  etc.,  at  the  same  time  the 
commemoration  of  the  French  liberty;  for  instance, 
the  First  Consul's  toast,  viz.,  to  the  memory  of  those 
who  have  fallen  in  the  defence  of  French  and  Ameri 
can  liberties,  or  something  to  this  purpose.  The  toast 
of  the  second  consul,  Cambaceres,  was  '  The  Successor 
of  Washington.'1 

"  After  the  supper,  about  ten,  were  splendid  and 
very  ingenious  fireworks  in  the  garden,  the  chateau 
being  illuminated  during  the  evening.  Next  followed 
a  fine  concert.  About  twelve  or  midnight  two  short 
but  interesting  comedies  were  performed  in  the  private 
theatre  in  the  chateau,  the  actors  being  the  best  from 
Paris.  At  the  conclusion  of  one  of  these  pieces  some- 

1  Lebrun,  third  consul,  proposed  "  The  Union  of  America  with  the 
Northern  powers  to  enforce  respect  for  the  liberty  of  the  seas,"  and  he 
probably  came  nearer  than  the  others  to  a  correct  expression  of  the  true 
object  of  Napoleon's  policy  with  the  United  States.  Thiers  ("  Consulate  and 
Empire,"  II,  247)  remarks  of  the  convention,  "  Cdtait  donner  sur  les  mers 
un  allie  de  plus  a  la  France,  et  un  ennemi  de  plus  a  Tangleterre ;  c^tait  un 
noveau  ferment  ajoute'  a  la  querelle  maritime,  qui  relevait  dans  le  Nord, 
et  qui  de  jour  en  jour  devenait  plus  grave." 


308  OLIVER   ELLSWORTH 

thing  in  verse  was  sung  respecting  the  United  States.1 
The  plays  ending  about  two  o'clock  in  the  morning,  (of) 
the  company  some  took  soon  to  their  beds,  some  taking 
a  second  supper,  and  some  starting  for  Paris  at  three 
o'clock.  In  the  forenoon  of  the  fourth,  I  had  leisure 
for  walking  again  in  the  garden,  and  being  in  company 
with  Mr.  Roederer's  son  he  informed  me  that  Joseph 
Bonaparte  proposed  the  raising  of  a  marble  monument 
in  the  garden  to  the  commemoration  of  the  signing  of 
the  treaty  of  F.  and  U.S.A." 

The  memoirs  of  Roederer  add  another  incident.2 
The  First  Consul,  it  seems,  had  directed  the  minister 
of  foreign  affairs  to  present  to  each  of  the  American 
ministers  a  costly  gift.  Moreover,  the  prefect  of 
L'Oise  having  brought  to  the  fete,  as  a  present  to  the 
First  Consul  himself,  a  basketful  of  gold  medals  of 
different  periods  of  the  Roman  republic,  which  had 
been  found  in  his  department,  Napoleon  remarked  that 
the  best  possible  disposition  of  these  relics  of  a  great 
republic  was  to  present  them  to  the  citizens  of  the 
American  republic.  He  accordingly  gave  a  handful 
to  each  of  the  three.  A  few  minutes  later,  the  com 
pany  observed  the  Americans  retire  into  the  recess  of 
a  window,  and  there  engage  in  an  animated  contro 
versy  with  their  secretary,  who,  as  it  afterwards  appeared, 
had  reminded  them  that  Americans  employed  in  diplo 
matic  offices  were  forbidden  to  accept  gifts  from  for 
eign  governments.  Roederer  was  of  opinion  that  the 
secretary,  having  been  overlooked  in  the  distribution 

1  The  Journal  de  Paris  of  October  6  contains  the  verses,  which  are 
hardly  worth  quoting.     Roederer,  III,  420. 

2  Ibid.,  337-338.     The  passage  in  which  Roederer  gives  his  own  rec 
ollections  of  the  convention  and  the  fete  was  translated  and  printed  in  the 
National  Intelligencer  of  Aug.  22,  1855.     Jackson  Ms. 


PARIS  309 

of  the  medals,  mixed  some  personal  pique  with  his  con 
stitutional  scruples.  The  envoys,  however,  accepted 
his  view,  explained  their  position  to  the  First  Consul 
through  the  French  ministers,  and  gave  back  the 
medals.  Napoleon,  explaining  that  he  had  not  meant 
to  make  them  an  ordinary  diplomatic  compliment,  and 
that  he  had  offered  the  medals,  not  as  so  much  gold, 
but  as  mementoes,  persuaded  them  to  retain  this  gift ;  * 
but  Talleyrand  did  not  venture  to  offer  them  the  other. 
Roederer  tells  the  story  with  an  air  of  discontent,  which 
the  sequel  explains.  Napoleon  soon  afterward  said  to 
him :  "  I  am  vexed  on  your  account.  You  lose  a  pres 
ent  of  equal  value  which  they  would  have  made  in 
return."  And  by  way  of  compensation  the  First 
Consul  himself  presented  to  Roederer  and  Fleurieu 
fifteen  thousand  francs  apiece. 

According  to  the  Journal  de  Paris,  the  American 
ministers  had  heard  with  much  emotion  the  toasts  of 
the  three  consuls,  and  had  expressed  their  appreciation 
as  well  as  their  imperfect  French  permitted ;  and  when, 
the  next  day  at  noon,  Talleyrand  presented  them  to 
the  First  Consul  to  take  their  leave,  Ellsworth  said : 
"  The  convention  which  we  have  had  the  honor  to 
sign  will  indissolubly  reunite  the  two  nations.  We 
make  no  doubt  but  that  it  will  produce  that  happy 
effect."  Murray  added,  "  And  the  three  American 
ministers  engage  themselves  to  give  all  their  atten 
tion  to  the  attainment  of  that  object."  Whereupon 
Napoleon  declared  that  the  misunderstanding  between 
the  two  nations  would  leave  no  more  traces  than  a 


1  But  this  story  of  Roederer's  is  not  confirmed  by  any  mention  of  the 
medals  in  any  other  account  of  the  mission,  nor  by  any  tradition  in  the 
Ellsworth  family. 


310  OLIVER   ELLSWORTH 

family  quarrel,  and  predicted  that  the  American  people 
would  soon  learn,  "  from  what  was  coming  to  pass  in 
the  North,"  the  value  of  a  union  founded  on  liberal 
principles.1 

Taking  their  departure  in  the  afternoon,  the  Ameri 
cans  proceeded  straight  to  Havre,  and  a  fortnight 
later,  having  been  detained  only  by  the  tides,  Ells 
worth  and  Davie  passed  over  to  England.  After  a 
farewell  dinner  at  Weymouth  on  October  22,  Governor 
Davie  and  Oliver  Ellsworth,  Jr.,  sailed  for  America, 
bearing  with  them  the  convention  and  Ellsworth's 
resignation  of  his  judicial  office.  He  himself  remained 
in  England,  still  designing  to  go  to  southern  France 
for  the  winter.  Meanwhile,  though  he  awaited  with  a 
natural  concern  the  judgment  of  his  government,  of 
his  party,  and  of  his  countrymen  in  general,  on  the 
outcome  of  the  mission,  he  could  only  leave  the 
case  as  he  and  his  colleagues  had  put  it  in  their 
final  letter  to  the  Secretary  of  State :  "  If,  with 
the  simple  plea  of  right,  unaccompanied  with  the 
menaces  of  power,  and  unaided  by  events  either 
in  Europe  or  America,  less  is  at  present  obtained 
than  justice  requires,  or  than  the  policy  of  France 
should  have  granted,  the  undersigned  trust  that  the 
sincerity  and  patience  of  their  efforts  to  obtain  all 
that  their  country  had  a  right  to  demand  will  not  be 
drawn  in  question." 

It  is  perhaps  the  strongest  of  all  the  evidences  of 
Ellsworth's  standing  with  his  contemporaries  that  his 
sincerity  and  his  integrity  were  not  drawn  in  question, 
as  Jay's  had  been.  Long  before  the  outcome  was 
known,  his  political  friends  at  home  had  been  busy 

1  Roederer,  VI,  420. 


PARIS  311 

conjecturing  what  was  going  on  at  Paris.  Pickering, 
Wolcott,  Ames,  and  Cabot,  in  particular,  had  expressed 
in  their  correspondence  an  anxiety  hardly  less  than 
that  of  Adams  himself,  who  regarded  the  mission  as 
the  crucial  episode  of  his  administration.  There  is 
also  reason  to  believe  that  in  the  autumn  of  1800  a 
number  of  Federalists  entertained  a  hope  that  the  out 
come  might  bring  Ellsworth's  figure  into  such  distinct 
relief  before  the  whole  country  that  the  party  would 
turn  to  him  as  a  fit  man  for  the  presidency  or  vice- 
presidency.  It  is  said  that  a  caucus  of  moderate 
Federalists  actually  resolved  to  bring  him  forward  in 
case  Adams  should  show  a  disposition  to  retire.1  But 
if  Adams  had  any  disposition  to  retire,  the  opposition 
within  his  own  party  was  enough  to  make  him  change 
his  mind.  The  convention,  though  it  was  published 
in  France  in  October,  and  soon  afterward  in  Eng 
land,  did  not  reach  America  until  December  —  too 
late  to  have  any  perceptible  effect  on  the  political 
situation  —  and  when  the  anti- Adams  Federalists 
learned  its  provisions  they  were  inclined  to  con 
sider  it  as  a  triumph  for  Adams,  rather  than  for 
Ellsworth  or  themselves.  It  is  possible  to  under 
stand,  but  hardly  possible  to  justify,  the  temper  in 
which  these  men  received  the  news  that  the  envoys 
had  made  peace  with  France.  Apparently,  nothing 
that  could  have  happened  in  our  foreign  relations 
would  have  displeased  them  more  —  except,  perhaps, 
a  disagreement  with  England.  Their  partisanship  of 

1  Van  Santvoord,  284.  "  It  has  been  thought  by  some,  that  if  your 
policy  had  been  pursued,  and  Mr.  Adams  renounced  absolutely  by  the 
Federalists,  it  would  have  been  in  our  power  to  have  carried  Pickering  and 
Ellsworth  or  Jay."  Cabot  to  Wolcott,  Nov.  28,  1800,  Lodge's  "Life  of 
Cabot,"  288.  See  also  Wharton's  State  Trials,  39. 


3I2 


OLIVER   ELLSWORTH 


Great  Britain  had  come  to  equal  the  Gallomania  of 
the  Democrats  a  few  years  earlier;  and  their  hatred 
and  distrust  of  France  almost  equalled  the  feel 
ing  of  the  French  Jacobins  toward  "perfidious 
Albion." 

Their  grief  over  Ellsworth's  share  in  the  business 
was  comical.  Unable  to  suspect  him  of  treachery, 
they  mournfully  concluded  that  his  illness  had  im 
paired  his  intelligence.  Early  in  October,  Cabot  had 
communicated  to  Wolcott  his  fears  "  that  the  high 
and  well-tempered  mind  of  our  excellent  friend  Ells 
worth  has  been  shaken  perhaps  by  sickness  in  part, 
but  in  part  also  by  the  events  he  has  witnessed,  and 
by  others  which  he  apprehended,  and  all  aggravated 
by  the  acts  and  management  of  a  set  of  people  at 
Paris  employed  for  the  purpose,  as  the  Kosciuskos, 
Barlows,  etc." l  And  when  the  first  reports  of  the 
convention  reached  America,  Cabot  wrote,2  "  If  what 
the  newspapers  represent  with  great  appearance  of 
truth  be  correct,  I  should  think  the  affairs  of  our 
country  are  in  the  worst  possible  situation  in  regard 
to  foreign  nations."  When  the  convention  arrived, 
Wolcott  wrote  to  Hamilton  : 3  "  You  will  be  afflicted 
on  reading  the  treaty  with  France.  Mr.  Ellsworth's 
health  is,  I  fear,  destroyed."  And  to  Pickering : 4 

"  You  will  read  the  treaty  which  was  signed  with 
France  with  astonishment.  I  can  account  for  it  only 
on  the  supposition  that  the  vigour  of  Mr.  Ellsworth's 
mind  has  been  enfeebled  by  sickness.  The  Senate 
are,  I  understand,  much  embarrassed,  though  they  will 
advise  a  conditional  ratification.  It  is  now  certain 

1  Lodge's  "  Cabot,"  204.  *  December  25,  Gibbs,  460. 

2  Ibid.  *  December  28,  Ibid.,  461. 


PARIS  313 

that  the  mission  has  proved  as  unfortunate  as  we 
considered  it  at  the  time  it  was  instituted." 

And  Pickering  replied : 1 

"  The  treaty  with  France  as  you  suppose  has 
excited  my  utter  astonishment.  Davie  and  Murray 
always  appeared  to  me  fond  of  the  mission,  and  I 
supposed  that  they  had  made  the  treaty,  but  when 
informed  that  our  friend,  our  highly  respected  and 

respectable  friend  Mr.  E ,  was  most  urgent  for  its 

adoption,  my  regret  equalled  my  astonishment.  The 
fact  can  be  solved  only  on  the  ground  which  you 
have  suggested." 

The  former  Secretary  of  State  then  went  on  to  criti 
cise  the  convention  more  specifically.  The  envoys, 
he  thought,  never  should  have  countenanced  the 
notion  that  the  old  treaties  could  ever  be  revived, 
or  consented  to  the  coupling  of  indemnities  in  any 
fashion  with  the  revival.  The  sixth  article,  granting 
the  privateers  and  prizes  of  France  the  privileges  of 
the  most  favored  nation  in  our  ports,  he  pronounced 
a  plain  violation  of  the  Jay  treaty.  By  engaging  to 
give  up  captured  ships,  we  admitted  that  we  were 
wrong  in  taking  hostile  measures  at  all.  Commerce 
with  the  colonies  of  France  was  silently  denied  us. 
A  stipulation  that  the  word  of  the  commander  of  a 
convoy  should  exempt  a  merchant  fleet  from  search 
also  struck  him  as  exceptionable.  Why  not  simply 
leave  to  each  of  the  parties  entire  freedom  of  trade 
with  the  enemies  of  the  other?  If,  as  Wolcott  had 
predicted,  the  Senate  should  ratify  only  conditionally, 
we  should  not  be  "  extricated  from  our  contest  "  — 
the  great  object  that  Mr.  Ellsworth  had  had  in  view 

1  Jan.  3,  1801,  Gibbs,  463. 


314  OLIVER   ELLSWORTH 

when  he  decided  to  remain  in  Paris  after  the  failure 
to  conclude  a  treaty. 

Sedgwick  of  Massachusetts  also  concluded  that 
"  the  mind  as  well  as  body  of  Mr.  Ellsworth  are  ren 
dered  feeble  by  disease." 1  Otis  pronounced  the 
whole  business  "another  chapter  in  the  book  of  hu 
miliation."  2  Gunn  of  Georgia  called  the  convention 
"detestable."3  "We  are,  by  treaty,  to  embrace 
France,"  wrote  Fisher  Ames,  "and  Frenchmen  will 
swarm  in  our  porridge-pots."4 

Hamilton  himself,  the  feud  with  Adams  being  now 
at  its  height,  took  in  private  a  tone  hardly  less  severe. 
Arguing  against  the  proposal  of  certain  Federalists 
to  support  Burr  as  against  Jefferson  when  the  con 
tested  election  of  the  President  should  come  into  the 
House  of  Representatives,  and  describing  Burr  as  a 
very  Catiline,  he  cited  in  evidence  toasts  given  at 
Burr's  table  to  the  French  republic,  to  the  commis 
sioners  on  both  sides,  to  Bonaparte,  and  to  Lafayette.5 
The  convention,  he  wrote  to  Sedgwick,  played  into 
the  hands  of  France  by  conceding  those  principles 
of  navigation  on  which  she  wished  to  build  up  a 
league  of  the  northern  powers  against  England.6  He 
also  regretted  the  free  ships,  free  goods  provision,  be 
cause  he  thought  England  would  object  to  it.  But 
in  public  he  defended  the  convention.  Even  in  that 
unwise  pamphlet  on  the  public  conduct  and  charac 
ter  of  Adams  which  he  published  about  this  time, 
fiercely  as  he  assailed  the  policy  of  the  mission,  he 

1  Hamilton's  Works,  VI,  491.  8  Ibid.,  492. 

2  Ibid.,  490.  *  Ames's  Works,  II,  289. 

5  Hamilton  to  Wolcott,  Dec.  17,  1800,  Gibbs,  II,  459. 

6  Hamilton's  Works,  VI,  495. 


PARIS  315 

pronounced  the  final  issue  of  it  "  an  honorable  accom 
modation,"  and  he  advised  his  friends  in  the  Senate 
to  ratify  the  convention.1 

President  Adams,  on  the  other  hand,  found  no 
fault  whatever  with  it.  He  wished  it  ratified  uncondi 
tionally.  "  Had  it  betrayed  a  single  point  of  essential 
honor  or  interest,"  he  afterward  wrote,  "  I  would  have 
sent  it  back,  as  Mr.  Jefferson  did  the  treaty  with 
England,  without  laying  it  before  the  Senate." 2  The 
majority  of  the  Senate,  and  perhaps  the  majority  of  the 
Federalist  senators,  although  they  probably  could  not 
agree  entirely  with  the  President,  refused  to  follow 
his  enemies.  The  southern  wing  of  the  party,  more 
moderate  in  general  than  the  northern  wing,  had  been 
for  some  time  out  of  sympathy  with  what  Adams  called, 
not  without  reason,  the  "  British  faction."  They  had 
never  joined  in  the  attack  on  Adams  and  the  mission ;  * 
and  if  John  Marshall,  after  his  humiliating  experience 
at  the  French  capital,  could  accept  peace  with  France 
on  the  proposed  terms,  other  fair-minded  men  within 
the  party  can  hardly  have  had  much  difficulty  with 
the  question.  As  Secretary  of  State  and  as  the  fore 
most  southern  Federalist,  Marshall  had  at  this  time 
a  potent  voice  in  his  party's  councils.  He  admitted 
that  he  was  very  far  indeed  from  approving  the  con 
vention,  but  he  advised  that  it  be  ratified.4  Gouver- 

1  From  a  letter  of  Ellsworth  to    Rufus  King  it  appears  that  he  had 
written  Hamilton  "a  few  observations   respecting  it    (the  convention), 
intended  to  guard  against  surprise."     Flanders,  264. 

2  Adams's  Works,  IX,  281. 

3  "  Unhappily  the  Federalists  of  the  North  do  not  agree  with  those  of 
the  South.     The  former  have  pretty  generally  expressed  a  disapprobation, 
while  the  latter  have  as  openly  vindicated  the  mission  to  France."     Cabot 
to  Gore,  Jan.  21,  1800,  Lodge's  "Cabot,"  268. 

4  Hamilton^  Works,  VI,  502. 


316  OLIVER   ELLSWORTH 

neur  Morris,  who  knew  his  France  better  perhaps 
than  any  other  American,  and  who  was,  moreover,  an 
excellent  man  of  business,  thought  that  with  one  or 
two  changes  it  would  be  "  no  bad  bargain." 1  As  the 
Senate  held  it  from  the  middle  of  December  until 
the  beginning  of  February,  it  doubtless  encountered 
serious  opposition.  But  at  this  session  the  House  of 
Representatives  had  to  choose  between  Jefferson  and 
Burr,  who  had  received  the  same  number  of  electoral 
votes  for  the  presidency,  and  the  contest  absorbed 
much  of  the  passion  that  had  so  long  embittered  the 
controversies  over  foreign  affairs.  Federalists  as  well 
as  Republicans  were  intriguing  to  influence  the 
choice  of  the  House.  Two  letters  from  Rufus  King, 
minister  to  England,  to  the  Secretary  of  State,  must 
have  gone  far  to  silence  one  contention  of  those 
who  opposed  ratification.  The  convention  had  no 
sooner  been  published  in  the  English  newspapers 
than  King  set  himself  to  learn  how  the  English  govern 
ment  regarded  it.  He  sounded  several  of  the  minis 
ters,  and  even  found  occasion  to  bring  up  the  subject 
with  the  king.  So  far  from  encountering  protest  and 
remonstrance,  he  gathered  from  his  inquiries  an  im 
pression  of  complaisance  bordering  on  indifference. 
When  he  could  report  that  England's  minister  of 
foreign  affairs,  with  whom  he  had  had  a  long  conver 
sation,  showed  no  signs  of  disappointment  or  discon 
tent,  it  was  absurd  for  Americans  to  argue,  —  as  some, 
however,  did, —  that  good  faith  with  England  required 
us  to  reject  the  convention.2  In  his  second  letter, 

1  Hamilton's  Works,  VI,  503. 

2  See  Ellsworth's  letter  to  King,  post,  p.  318.     Hamilton  did  not  at  all 
agree  with  this  view.     "  In  my  opinion,"  he  wrote  to  Gouverneur  Morris, 


PARIS  317 

King  declared  that  England  now  desired  to  make 
peace  with  Bonaparte.  Ellsworth's  reception  at  court 
proved,  he  thought,  that  the  government  was  without 
animosity  or  unusual  prejudice  against  America. 

On  February  3,  the  convention  was  ratified  with 
only  one  condition ;  but  that  condition  was  unwise. 
Striking  out  the  entire  second  article,  which  contained 
the  agreement  to  negotiate  at  some  future  time  on  the 
subject  of  indemnities  and  the  renewal  of  the  old 
treaties,  the  Senate  substituted  the  words :  "  It  is 
agreed  that  the  present  convention  shall  be  in  force 
for  a  term  of  eight  years  from  the  exchange  of  the 
ratifications."  In  this  amendment,  Adams  reluctantly 
acquiesced.  When  Napoleon  came  to  consider  it,  he 
at  once  discerned  in  it  an  unexpected  opportunity  to 
erect  another  barrier  against  the  claim  of  indemnities. 
He  gave  his  consent  both  to  the  time-limit  and  to 
the  elimination  of  the  second  article,  but  with  the 
proviso  "  that  by  this  retrenchment  the  two  states 
renounce  the  respective  pretensions  which  are  the 
object  of  said  article."  As  this  made  another  change, 
Adams  felt  bound  to  take  the  advice  of  the  Senate  a 
second  time  before  proclaiming  the  convention.  But 
the  Senate  resolved  to  consider  it  fully  ratified,  and  it 
became  the  law  of  the  land. 

When  Ellsworth  learned  of  the  Senate  amendment, 
he  wrote  to  his  friend  King  at  London : 1 

"  The  exception  of  the  2d  article  makes  the  instru 
ment  rather  worse  for  us,  as  it  leaves  room  for  France 

"  there  is  nothing  in  it  (the  convention)  contrary  to  our  treaty  with  Great 
Britain."     Works,  VI,  496.     It  is  rather  curious    that   Jefferson,  on   the 
other  hand,  perhaps  because  he  was  soon  to  be  the  responsible  head  of 
the  government,  felt  uneasy  lest  we  cornpromit  ourselves  with  England. 
1  March  17,  1801,  Flanders,  264;  Wood  Ms. 


31 8  OLIVER   ELLSWORTH 

to  claim  anteriority  in  the  point  of  interference.  And 
I  think  it  most  likely  she  will  accede  to  the  alteration." 

Apropos  of  what  was  said  in  the  United  States 
about  the  convention  and  about  himself,  he  had  al 
ready  written  to  the  same  correspondent : l 

"  I  am  very  sorry  to  hear  that  his  Majesty  has  been 
deranged,  and  still  more  so  to  learn  that  I  am  supposed 
to  be  in  the  same  predicament.  I  devoutly  hope  that 
a  similar  imputation  will  not  extend  to  our  govern 
ment  ;  but  that  it  will  continue  to  have  respect,  though 
mine  is  lost  in  its  service.  What  more  is  at  present 
to  be  done  with  France  will,  at  least,  fall  to  the  lot  of 
some  one  not  prejudged  distracted  for  undertaking  it. 

"  It  is  strange  that  after  your  letter  to  the  Secretary 
of  State  (of  which,  if  you  see  no  impropriety,  I  hope 
you  will  favor  me  with  a  copy,  or  an  extract)  it  could 
have  been  supposed  that  G.  B.  (Great  Britain)  had  a 
right  to  complain;  and  even  without  that  letter  it 
ought  to  have  been  sufficient,  that  by  an  uncontested 
rule  of  construction  there  is  implied  and  understood  a 
saving  for  the  operation  of  prior  treaties. 

"  The  3d  article,  including  a  restoration  of  the 
frigate,  had,  as  you  know,  its  real  reciprocity  in  that 
part  of  the  4th  which  secured  the  restoration  of  about 
forty  valuable  merchantmen,  chiefly  letters  of  marque, 
on  such  proofs  of  ownership  as  they  were  known  to 
be  furnished  with.  If  the  rights  of  war  had  attached, 
restoring  the  latter  was  a  much  greater  sacrifice  than 
that  of  the  former ;  and  if  there  had  not  been  war  there 
was  nothing  humiliating  nor  unusual  in  the  restora 
tions  on  either  side. 

"  The  2d  article  was   harmless ;   and  by  admitting 

1  Feb.  26,  1 80 1,  Flanders,  262-263. 


PARIS  319 

the  inoperation  of  the  former  treaties,  silenced  a  claim 
which  would  have  been  continued,  and  might  have 
become  embarrassing. 

"As  to  provisions  respecting  future  captures  and 
commerce,  we  might  have  been  satisfied  with  them 
quite  as  long  as  France,  by  observing,  would  avoid  an 
occasion  to  revise  them.  To  have  expressed  a  limita 
tion  of  years  to  the  convention  was  truly  compatible 
with  the  idea  of  a  further  and  definitive  treaty,  em 
bracing  the  claims  of  indemnity  which  we  were  not  at 
liberty  to  abandon.  But  I  will  not  trouble  you  with 
remarks  as  obvious  as  they  are  now  become  useless." 

An  excellent  temper,  surely,  in  which  to  meet  criti 
cism.  The  poise  and  self-control,  the  modesty  and 
good  nature  of  "  our  excellent  friend  Ellsworth  "  make 
here  a  good  contrast  with  the  shrill  carping  of  such  a 
man  as  Pickering.  And  the  "  obvious  remarks  "  are  a 
really  convincing  answer  to  the  principal  strictures  on 
the  convention.  On  the  whole,  Ellsworth  had  done 
better  with  France  than  Jay  had  done  with  England. 
He  had  made  the  best  of  a  difficult  situation,  and  that 
best  proved  to  be  better  than  most  observers  thought. 
He  and  his  colleagues  had  not  merely  extricated  their 
country  from  an  unequal  contest;  they  had  secured 
for  her  positive  benefits  and  still  more  valuable  im 
munities.  They  had  also  materially  promoted  a  cause 
in  which  their  country  was  not  alone  interested.  The 
provisions  of  the  convention  concerning  neutral  com 
merce —  that  the  flag  covers  the  goods,  that  only 
material  and  instruments  of  war  are  contraband,  that 
neutral  vessels  may  pass  from  any  port  to  any  other 
port  not  actually  blockaded,  that  searches  and  seizures 
shall  be  governed  by  rules  —  carried  out  the  most  ad- 


320  OLIVER   ELLSWORTH 

vanced  and  enlightened  views  of  the  relations  between 
neutrals  and  belligerents.  They  embodied,  as  Thiers 
remarks,  the  law  of  neutrals.1  Ellsworth  may  have 
worked  for  these  agreements  only  because  his  own 
country  desired  them.  His  merit  may  not  have  gone 
beyond  patriotism.  But  of  that  virtue  he  had  given  a 
superb  example.  He  had  risen  above  personal  ambi 
tion,  above  party,  above  the  mere  combativeness  and 
truculence  into  which  patriotism  itself  sometimes  turns. 
He  had  sought  nothing  but  the  interest  and  the  honor 
of  his  country.  It  would  be  hard  to  find  in  the  politi 
cal  history  of  the  time  another  public  service  that  com 
mands  an  approval  so  unreserved.  Compared  with 
any  one  of  the  party  leaders  at  home,  not  even  Hamil 
ton  or  Jefferson  excepted,  the  figure  of  Ellsworth  dur 
ing  the  interval  of  his  exile  in  England  rises  into  a 
superior  dignity.  It  were  well  if  we  could  steadily 
prefer  such  integrity,  such  singleness  of  purpose,  such 
absorption  in  service,  even  to  the  surpassing  genius 
and  the  monstrous  self-assertion  of  that  extraordinary 
creature  whom  this  old-fashioned  American  statesman 
had  recently  fronted  at  Paris  and  at  Mortefontaine. 

Ellsworth  enjoyed  his  stay  in  England,  for  he  found 
there  men  and  things  that  interested  him  deeply. 
To  visit  England  at  this  period,  when  the  passage  of 
the  Atlantic  was  still  a  matter  of  weeks  and  perhaps 
months,  when  memories  of  the  Revolution  still  com 
bated  and  heightened  older  loyalties  and  reverences, 
must  have  been  a  great  experience  to  any  thoughtful 
American.  Ellsworth,  moreover,  was  of  pure  English 
blood ;  he  had  been  all  his  life  a  student  of  English 

1  "  Constituent  veritablement  le  droit  des  neutres."  Thiers,  "  Consu 
late  and  Empire,"  II,  219. 


PARIS  321 

institutions  and  English  law;  he  was  himself  lawyer, 
lawgiver,  and  judge,  and  one  of  the  framers  of  a  free 
constitution  of  government.  In  his  own  character, 
and  his  ideals  of  life  and  conduct,  he  had  followed, 
perhaps  unconsciously,  English  models.  He  had  left 
France  with  relief,  so  soon  as  his  work  there  was  done. 
Once  in  England,  he  found  himself  disposed  to  linger 
there  longer  than  he  had  intended. 

In  London,  he  made  a  visit  to  Westminster  Hall, 
where  his  reception  probably  gratified  him  even  more 
than  that  he  got  at  court.  It  does  not  appear  that 
Jay  had  ever  invaded  the  precincts  of  the  King's 
Bench ;  and  the  judges  and  the  bar  of  that  ancient 
and  famous  court  manifested  much  curiosity  and  in 
terest  at  the  appearance  there  of  an  American  Chief 
Justice.  Invited  to  a  seat  beside  Lord  Kenyon,  the 
English  Chief  Justice,  who  was  sitting  with  Judges 
Grose  and  Le  Blanc,  Ellsworth  heard  several  of  the 
most  distinguished  lawyers  in  England  plead  in  a 
still  famous  cause.  The  case  on  trial  was  Rex  vs. 
Waddington,  and  of  counsel  on  one  side  or  the 
other  were  such  famous  advocates  as  Law,  Erskine, 
Garrow,  and  Scott.  Such  had  been  the  keenness  of 
the  contending  parties  to  retain  Garrow  that  there  had 
been  a  scuffle  between  rival  emissaries  before  the  door 
of  his  chambers.  Lord  Kenyon  was  an  uncommonly 
awkward  man,  and  Ellsworth's  simple  but  dignified 
carriage  shone  by  contrast.  In  spite  of  his  broken 
health,  he  made  an  excellent  impression  on  the  Eng 
lish  lawyers  who  saw  him,  and  indeed  greatly  sur 
prised  them ;  for  these  learned  gentlemen  were  not,  it 
appears,  superior  to  the  mass  of  their  countrymen  in 
the  knowledge  of  things  American.  When  he  came 


322  OLIVER   ELLSWORTH 

down  from  the  bench,  a  knot  of  them  surrounded  him, 
"  curious  to  know  how  the  Common  Law  stood  trans 
planting,"  and  some  of  them  asked  questions  that 
threw  a  comical  light  on  the  notions  of  America  which 
prevailed  in  the  mother  country.  Thinking,  doubtless, 
that  Americans  were  for  the  most  part  a  kind  of  creol- 
ish  hybrids,  a  mixture  of  English  and  Indians,  Judge 
Grose  inquired,  with  an  air  of  great  delicacy,  "  whether 
the  obstruction  of  the  course  of  descent  had  not  turned 
fee  simples  into  life  estates."  Garrow's  question  was, 
"  Pray,  Chief  Justice,  in  what  cases  do  the  half  blood 
in  America  take  by  descent  ?  " l 

Finding  himself  strong  enough  to  travel,  Ellsworth 
made  several  brief  excursions.  On  one  of  them,  he 
visited  a  hamlet  called  Ellsworth,  near  Cambridge, 
and  learned  also  that  a  number  of  people  living  near 
by,  in  Yorkshire,  bore  the  same  name.  Originally,  he 
was  told,  the  hamlet  had  been  called  Eelsworth,  from 
the  circumstance  that  it  was  situated  on  a  small  stream 
famous  for  eels  —  the  Anglo-Saxon  terminal  "  worth  " 
signifying  "  place."  The  explanation  was  doubtless 
correct ;  and  as  the  American  Ellsworths  had  a  tradi 
tion  that  their  common  ancestor  came  from  that  part 
of  England,  and  as  a  Mr.  John  Ellsworth  of  London, 
a  rich  cheesemonger,  told  the  Chief  Justice  of  a  great- 
grand-uncle  who  had  gone  from  Yorkshire  "  to  foreign 
parts,"  it  is  quite  possible  that  the  American  Ellsworth 
had  discovered  the  original  seat  of  his  family  as  well 
as  the  origin  of  his  name. 

The  circumstance  can  hardly  have  failed  to 
strengthen  his  growing  attachment  for  England. 
Even  the  climate  had  had  an  unexpectedly  favorable 

1  Wharton's  American  State  Trials,  40. 


PARIS  323 

effect  on  his  health.  Abandoning  his  plan  of  going 
to  southern  France,  he  proceeded,  instead,  to  Bath, 
whence  he  wrote  occasionally  to  King  at  London. 
These  letters  are  nearly  all  about  English  and 
American  politics,  and  for  a  man  suffering  from  so 
cruel  a  disease  he  made  them  surprisingly  cheerful. 
One  of  them  refers,  with  a  mild  jocularity,  to  his  own 
illness: 

"  As  you  have  lived  long  and  well  enough  to  begin 
to  die,  you  should  welcome  the  gout  in  your  joints,  as 
the  best  means  to  protract  the  process,  and  give  lucid 
intervals.  The  Bath  waters,  I  believe,  seldom  cure 
this  disease,  though  they  mitigate  and  shorten  its 
paroxysms ;  and  are  also  of  great  use  when  needed 
to  fix  it  to  the  extremities.  This  effect,  however,  is 
more  than  they  are  likely  to  produce  for  me,  while  my 
kidneys  are  weakened  by  the  constant  laceration  of 
sand.  .  .  ." 

Having  learned  that  in  the  elections  in  the  United 
States  the  Federalists  were  defeated,  he  added : 

"  So  the  anti-Feds  are  now  to  support  their  own 
administration,  and  take  a  turn  at  rolling  stones  up 
hill.  Good  men  will  get  a  breathing  spell,  and  the 
credulous  will  learn  the  game  of  out  and  in." 

All  his  allusions  to  the  great  political  change  of 
1800  show  the  same  good  sense,  and  the  same 
balance  and  magnanimity,  that  he  had  displayed 
under  the  criticisms  of  his  course  at  Paris.  He  proved 
a  far  better  loser  than  some  others  of  the  group  of 
Federalists  who  for  twelve  years  had  held  the  chief 
places  in  the  government.  Even  as  far  back  as  1796, 
when  most  of  his  friends  had  contemplated  the  pos 
sibility  of  the  election  of  Jefferson  with  the  utmost 


324  OLIVER   ELLSWORTH 

horror  and  dismay,  he  had  taken  a  somewhat  more 
charitable,  if  not  more  cheerful,  view.  A  gentleman 
who  was  at  that  time  a  member  of  Congress  after 
ward  wrote :  * 

"  I  was  one  evening  sitting  alone  with  Mr.  Ellsworth, 
when  I  asked  him  the  question,  why  the  apprehensions 
of  Mr.  Jefferson's  being  President  should  occasion  so 
much  alarm  ?  at  the  same  time  observing  that  it  could 
not  be  supposed  he  was  an  enemy  to  his  country,  or 
would  designedly  do  anything  to  injure  the  Govern 
ment  as  constitutionally  established.  Mr.  Ellsworth, 
after  a  short  pause,  replied  :  '  No,  it  is  not  apprehended 
that  Jefferson  is  an  enemy  to  his  country,  or  that  he 
would  designedly  do  anything  wrong.  But  it  is 
known  he  is  a  visionary  man,  an  enthusiastic  disciple 
of  the  French  Revolution,  and  an  enemy  to  whatever 
would  encourage  commercial  enterprise,  or  give  energy 
to  the  government.  It  is  apprehended  that,  if  he 
were  President,  he  would  take  little  or  no  responsi 
bility  on  himself.  The  nation  would  be,  as  it  were, 
without  a  head.  Everything  would  be  referred  to 
Congress.  A  lax,  intriguing  kind  of  policy  would 
be  adopted;  and  while  arts  were  practiced  to  give 
direction  to  public  sentiment,  Mr.  Jefferson  would 
affect  to  be  directed  by  the  will  of  the  nation.  There 
would  be  no  national  energy.  Our  character  would 
sink,  and  our  weakness  invite  contempt  and  insult. 
Though  Mr.  Jefferson  would  have  no  thoughts  of  war, 
his  zeal  in  the  French  cause,  and  enmity  to  Great 
Britain,  would  render  him  liable  to  secret  influence, 
that  would  tend  to  the  adoption  of  measures  calcu 
lated  to  produce  war  with  England,  though  it  was  not 

1  Flanders,  177-178. 


PARIS  325 

intended,  and  the  nation  might  be  plunged  into  a  war 
wholly  unprepared.' " 

This  was  a  severe  judgment ;  but  it  was  a  judgment, 
not  a  mere  outbreak  of  partisan  malice  and  fear,  and 
it  set  forth  correctly,  though  it  may  have  exaggerated, 
the  weakness  of  Jefferson's  character.  "  A  lax,  intrigu 
ing  kind  of  policy  "  is  not  an  entirely  unfair  descrip 
tion  of  his  ways  in  the  presidency;  and  the  more 
specific  predictions  of  the  results  of  his  administration 
proved  measurably  accurate. 

And  yet,  now  that  the  great  Republican  theorist 
had  triumphed,  Ellsworth,  disposed  to  make  the  best 
of  it,  could  write  to  King : 

"  You  do  not  surely  mistake  the  fear  of  Jefferson 
for  the  gout ;  because  you  think  as  I  do,  that  he  dare 
not  run  the  ship  aground,  nor  essentially  deviate  from 
that  course  which  has  hitherto  rendered  her  voyage 
so  prosperous.  His  party  also  must  support  the  gov 
ernment  while  he  administers  it ;  and  if  others  are 
consistent  and  do  the  same,  the  government  may  even 
be  consolidated,  and  acquire  new  confidence.  It  may 
be  well  however  for  your  letters  to  guard  against  that 
despondency  of  some  who,  always  believing  that  the 
government  must  soon  die,  will  be  apt  to  say,  it  can 
never  die  in  better  hands." 

Unfortunately,  the  mass  of  his  fellow-Federalists 
did  not  see  their  duty  as  he  did.  But  for  the  patri 
otic  stand  by  which  Hamilton  atoned  for  his  recent  far 
from  admirable  course  in  the  quarrel  with  Adams,  and 
which  eventually  cost  him  his  life,  the  Federalists  in 
Congress  would  have  made  Burr  President  —  the  first 
of  the  many  spiteful  acts  of  disappointment  and  cha 
grin  that  soon  completed  the  party's  ruin.  "  So  then, 


326  OLIVER   ELLSWORTH 

my  dear  sir,"  Ellsworth  wrote  to  King,  when  he  knew 
that  the  scheme  had  failed,1  "  after  thirty  trials,  for 
tune  has  given  us  the  best  of  a  bad  bargain.  I  think 
the  Feds  have  acquired  less  reputation  by  the  contest 
than  the  public  would  have  lost  had  they  succeeded." 
In  the  same  letter,  he  announced  that  he  had 
engaged  passage  from  Bristol  and  would  sail  the 
27th  or  28th  of  March.  The  Bath  waters  had  merely 
given  him  some  relief  from  suffering;  they  had  not 
cured  his  malady  or  restored  his  strength.  The 
return  passage  again  taxed  him  sorely.  Landing  at 
last  in  Boston,  he  rested  a  little  time  with  Cabot,  and 
then  journeyed  painfully  on  to  Windsor.  The  day  set 
for  his  home-coming,  the  members  of  his  family  were 
gathefed  at  Elm  wood  awaiting  him;  and  when  at 
last  they  caught  sight  of  his  carriage,  they  all  rushed 
forth  to  greet  him.  But  instead  of  the  robust,  strong 
figure  of  two  years  earlier,  they  saw  a  feeble,  pale,  fear 
fully  emaciated  old  man  step  from  the  carriage.  Pro 
foundly  affected,  Ellsworth  silently  waved  back  the 
eager  greetings  of  his  wife  and  children,  tottered  to 
the  gate,  leaned  over  it,  covered  his  face  with  his 
hands,  and  bowed  his  head  in  a  prayer  of  gratitude 
that  he  had  lived  to  see  again  his  country,  his  home, 
his  family.2 

1  March  22,  Flanders,  264-265. 

2  Mrs.  Sigourney,  in  "  National  Portrait  Gallery,"  IV,  article  on  Ells 
worth. 


CHAPTER  VIII 

HOME 

IT  was  from  no  unusual  impulse  that  Ellsworth 
paused  to  offer  thanks  to  God  before  he  tasted  the 
happiness  of  his  home-coming.  If  in  this  account  of 
his  career  any  force  that  helped  to  shape  his  character 
has  been  hitherto  neglected,  it  is  religion.  In  the  list 
of  the  principles  that  controlled  his  life,  the  religious 
ought  perhaps  to  be  put  highest :  above  patriotism ; 
even  above  that  instinct  and  habit  of  complete  devo 
tion  to  the  task  in  hand  which  he  displayed  in  all  his 
activities.  When  he  turned  away  from  the  ministry 
in  his  youth,  he  did  not  abandon  his  interest  in  reli 
gious  subjects,  nor  did  he  reject  the  particular  creed 
in  which  he  had  been  bred.  He  accepted  it  fully,  and 
he  took  it  as  his  fathers  had  taken  it,  —  gravely  and 
practically,  for  a  rule  of  conduct  as  well  as  a  creed. 

The  present  generation,  not  perhaps  less  open  to 
religious  moods  than  any  that  has  gone  before,  but  in 
a  strong  revulsion  against  the  forms  and  usages  of 
piety,  and  inclining  more  and  more  to  sublimate  doc 
trine,  can  hardly  appreciate  the  literal  force  of  Chris 
tianity  in  the  lives  of  educated  men  and  women  a 
century  or  more  ago.  But  to  understand  a  life  like 
Ellsworth's  we  must  take  account  of  a  well-nigh  con 
stant  reference,  in  his  own  mind,  of  all  his  actions  and 
decisions  to  a  hard-and-fast  moral  standard,  and  of 
a  steadfast  acquiescence  in  all  the  main  Christian 

327 


328  OLIVER   ELLSWORTH 

tenets.  He  prayed  to  a  personal  God.  He  held  to 
the  hope  of  a  future  life,  for  which  this  earthly  life 
should  be  but  a  preparation.  On  all  questions  in 
theology  and  church  government,  he  was  an  orthodox 
Congregationalist.1 

Human  nature  does  not  justify  confident  reasoning 
from  men's  beliefs  to  their  conduct,  but  Ellsworth  was 
a  man  who  lived  up  to  his  professions  beyond  the  ordi 
nary  standards  of  consistency.  He  kept  the  Sabbath 
holy,  and  went  unfailingly  to  church.  In  the  absences 
of  the  minister,  he  himself  frequently  served  as  a  lay 
reader.  He  held  prayers  every  morning  in  his  own 
household,  with  lessons  from  Doddridge's  "  Expositor  " ; 
often  read  Tillotson's  sermons  aloud  to  his  family; 
studied  the  Bible  daily.  When  he  came  back  from 
Europe,  he  brought  several  boxes  of  books,  and  most 
of  them  were  religious.  In  the  catalogue  of  his  library 
which  was  made  at  the  time  of  his  death,  more  than 
half  the  titles  are  of  works  on  religion.  During  his 
later  years,  he  gave  himself  more  and  more  to  the 
study  of  theology.  Now  that,  as  he  wrote  to  King,  he 
had  "  begun  to  die,"  he  turned  with  his  old  resolute 
concentration  to  a  closer  grappling  with  the  great 
problem. 

He  took  his  full  share  of  the  work  of  his  church 
and  of  other  organized  religious  activities  in  his  own 
community.  In  the  middle  of  the  eighteenth  century, 

1  But  quite  probably  called  himself  a  Presbyterian.  "  The  (Congrega 
tionalist)  churches  of  Connecticut  were  often  designated  by  their  own  pas 
tors  and  members  as  i  Presbyterian.' "  Williston  Walker,  "  History  of  the 
Congregational  Churches  in  the  United  States,"  315.  "They  freely  used 
the  name  Presbyterian  as  the  briefest  description  of  their  ecclesiastical 
position."  R.  E.  Thompson,  "History  of  the  Presbyterian  Churches  of 
the  United  States,"  15. 


HOME  329 

the  old  "  First  Society  "  of  Windsor  had  divided,  the 
seceders  forming  the  Fourth  Society.  In  1792,  joining 
with  several  other  men  of  influence,  he  worked  for  and 
accomplished  a  reunion.  The  reunion  made  it  possible 
to  build  a  new  meeting-house,  and  he  served  on  the 
building  committee,  chose  the  plans  of  the  new  edifice, 
and  when  it  was  finished  helped  to  raise  for  the  society 
a  money  endowment.1  Altered  somewhat  in  1745, 
but  not  radically,  the  building  still  stands,  a  good 
example  of  the  dignified  architecture  of  the  period,  on 
the  pleasant  knoll  on  the  north  bank  of  the  Farming- 
ton,  where  once  stood  the  "palisades,"  built  by  the 
first  settlers  for  a  defence  against  the  Indians,  and 
where  so  many  Windsor  generations  lie  buried. 

A  few  years  later,  he  rendered  what  at  the  time 
probably  seemed  a  good  service  to  his  denomination 
throughout  the  state.  At  the  beginning  of  the  nine 
teenth  century,  the  Congregationalists  of  Connecticut 
found  themselves  under  fire.  Their  creed  and  their 
organization  kept  still  a  strong  hold  on  New  England 
society.  The  Unitarian  revolt  was  not  yet  under  way, 
even  in  Massachusetts.  But  the  other  denominations 
were  growing  restive  under  the  long  dominance  of 
Calvinism,  and  in  the  Connecticut  laws  concerning 
religious  societies  they  found  much  to  complain  of. 
These  statutes,  they  charged,  violated  the  principles 
of  religious  freedom.  The  Baptists  were  most  ardent 
in  the  agitation  for  reform,  and  in  1801  and  1802,  in 
a  vigorous  petition  to  the  General  Assembly,  they  set 
forth  at  length  the  grievances  of  all  the  other  Chris 
tians  of  Connecticut  against  the  dominant  church. 
The  act  for  the  support  of  ministers,  they  declared, 

1  Ms.  notes  of  Mr.  W.  Irving  Vinal ;  Jackson  Ms. 


330  OLIVER   ELLSWORTH 

inured  unfairly  to  the  advantage  of  that  church,  since 
it  empowered  the  majority  in  any  community  —  usu 
ally  a  Presbyterian  majority 1  —  to  choose  the  minister, 
arid  appropriated  to  his  support  all  property  devoted 
in  general  terms  to  the  maintenance  of  religion.  Vari 
ous  other  acts  and  parts  of  acts  were  cited  as  operat 
ing  in  similar  fashion  to  take  money  from  Christians 
of  other  denominations  to  support  Presbyterian  minis 
ters  and  build  Presbyterian  churches. 

In  May,  1802,  the  General  Assembly  set  Ellsworth 
at  the  head  of  a  committee  to  report  on  this  "  Baptist 
Petition,"  and  the  report,  which  he  signed  alone,  reveals 
him  a  decided  conservative.  He  adopts  the  principle 
that  every  member  of  society  may  be  required  to  help 
support  religious  institutions,  and  on  that  broad  ground 
justifies  the  laws  attacked  in  the  petition.  One  appreci 
ates  the  great  advance  in  religious  freedom  which  the 
then  dawning  century  witnessed  when  one  reads,  over 
the  name  of  a  man  who  on  other  lines  had  served  the 
cause  of  free  government  so  well  as  Ellsworth  had, 
such  reasoning  as  this : 

"  This  opinion,  however,  is  founded  on  the  principle 
recognized,  that  every  member  of  society  should,  in 
some  way,  contribute  to  the  support  of  religious  insti 
tutions.  In  illustration  of  this  principle,  it  may  be 
observed,  that  the  primary  objects  of  government  are 
the  peace,  order,  and  prosperity  of  society.  By  their 
preservation,  individuals  are  secured  in  all  their  valu 
able  interests.  To  the  promotion  of  these  objects, 
particularly  in  a  republican  government,  good  morals 
are  essential.  Institutions  for  the  promotion  of  good 

1  In  the  petition,  Congregationalists  are  uniformly  styled  Presbyterians. 
See  ante,  p.  328,  note. 


s 

E 


o   a 


HOME  331 

morals  are  therefore  objects  of  legislative  provision 
and  support;  and  among  these,  in  the  opinion  of  the 
committee,  religious  institutions  are  eminently  useful 
and  important.  .  .  . 

"  The  right  of  the  legislature  to  oblige  each  indi 
vidual  of  the  community  to  contribute  towards  the 
support  of  schools  for  the  instruction  of  children,  or  of 
courts  of  justice  for  the  protection  of  rights,  is  not 
questioned ;  nor  is  any  individual  allowed  to  refuse 
his  contribution,  because  he  has  no  children  to  be 
instructed,  no  injuries  to  be  redressed,  or  because  he 
conscientiously  believes  those  institutions  useless.  On 
the  same  principle  of  general  utility,  in  the  opinion  of 
the  committee,  the  legislature  may  aid  the  mainte 
nance  of  that  religion  whose  benign  influence  on  morals 
is  universally  acknowledged.  It  may  be  added  that 
the  principle  has  been  long  recognized,  and  is  too 
intimately  connected  with  the  peace,  order,  and  happi 
ness  of  the  state  to  be  abandoned." l 

Ellsworth  served  on  this  committee  as  a  member  of 
the  council ;  for  he  had  yielded  to  the  wish  of  his 
neighbors  that  he  should  again  represent  them  in  the 
upper  house  of  the  legislature.  He  kept  his  seat  as 
long  as  he  lived,  and  never  neglected  to  attend  the 
sessions  when  his  health  permitted.  The  council  was 
still  the  judicial  court  of  final  resort,  and  its  business 
as  a  court  was  usually  important.  His  own  reputation 
gave  an  additional  distinction  to  his  appearances  as  a 
member  of  it.  In  Thomas  Day's  reports  of  its  deci 
sions,  the  only  clew  to  those  that  are  his  is  the  style 
and  reasoning.  One  merely  conjectures,  for  instance, 

1  Both  the  petition  and  the  report  are  in  the  Connecticut  Courant  of  June 
7, 1802. 


332  OLIVER   ELLSWORTH 

that  it  was  he  who,  in  Brainerd  vs.  Fitch,1  again  argued, 
as  in  Adams  vs.  Kellogg,  that  a  feme-covert  cannot 
devise  real  estate.  But  he  is  presented  to  us  in  this, 
his  last  public  character,  in  the  admiring  tributes  of 
several  younger  men  who  doubtless  studied  him  keenly 
as  an  example  of  conspicuous  success  in  the  law  and 
in  statesmanship.  Day,  the  reporter,  was  one  of  those 
who  left  their  impressions  of  the  figure  Ellsworth  made 
in  the  council.  His  manner  in  rendering  opinions 
Day  thought  greater  and  more  majestic  than  any  other 
man's  he  ever  saw.  According  to  another  observer, 
a  young  lawyer  who  himself  rose  to  judicial  eminence, 
when  Judge  Ellsworth  spoke  in  the  council,  he  always 
held  his  listeners  perfectly  silent  and  attentive,  not  by 
his  reputation,  but  by  manner,  voice,  presence,  and 
particularly  by  the  extraordinary  terseness  and  lucid 
ity  of  his  expositions.  These  were  compared  by 
another  distinguished  lawyer  to  the  husking  of  an 
ear  of  corn, — layer  after  layer  of  misconception  peeled 
off,  until  the  true  issue  shone  forth  clear  to  every  in 
telligence.2  His  opinions  had  an  extraordinary  weight 
with  his  fellows  in  the  council.  One  day,  after  a 
brief  discussion  of  an  apparently  simple  case,  the 
second  Governor  Trumbull,  who  presided,  put  the 
question  to  each  member  in  turn,  beginning,  as  usual, 
on  the  right;  and  when  a  majority  had  voted,  all  on 
the  same  side,  he  was  about  to  stop  and  announce  the 
decision.  But  Ellsworth,  who  as  the  senior  member 
sat  on  the  governor's  left,  advised  him  to  keep  on 
around  the  board.  Again  no  one  dissented  until 
Ellsworth's  own  turn  came.  Calling  attention,  in  a 

1  Day's  Reports,  163-194;  Van  Santvoord,  288. 

2  John  Allyn,  quoted  in  Jackson  Ms. 


HOME  333 

few  brief  sentences,  to  a  principle  in  the  case  which 
no  one  else  had  discerned,  he  voted  alone  on  the 
other  side.  Without  a  word  more  of  discussion,  the 
others  all  changed  their  votes.1 

There  is  another  story  that  exhibits  a  very  amiable 
trait  of  his  character.  The  senior  counsel  on  one 
side  in  an  important  cause,  disregarding  the  courte 
ous  usage  of  the  bar,  addressed  the  court  without  first 
consulting  his  associate,  a  young  man  just  begin 
ning  practice,  as  to  the  line  of  argument  they  should 
follow.  The  junior  counsel  showed  plainly  that  he 
felt  the  slight;  and  when  his  turn  came,  disregard 
ing  the  lead  of  his  senior,  he  coolly  proceeded  to 
argue  the  case  on  an  entirely  different  line.  The 
court  took  the  unusual  course  of  ordering  the  argu 
ments  repeated,  and  in  the  end  based  its  decision 
solely  on  the  younger  man's.  A  few  days  later,  Ells 
worth  called  at  the  latter's  room,  had  a  look  at  his 
slim  collection  of  law  books,  told  him  he  ought  to 
have  more,  and  offered  to  lend  him  the  money  to  buy 
them.  The  story  has  a  proper  sequel ;  for  the  young 
lawyer  became  Ellsworth's  son-in-law,  and  rose  in  time 
to  be  Chief  Justice  of  the  state.2 

Ellsworth,  it  appears,  though  he  had  sons  of  his 
own,  was  given  to  befriending  young  men  of  his  ac 
quaintance,  particularly  young  lawyers.  During  the 
winter  after  his  return  from  Europe,  he  invited  five 
youths  of  his  neighborhood  into  his  office  and  library, 
and  himself  guided  their  studies.  He  took  much 
interest  in  the  whole  subject  of  education.  As  a 
member  of  the  council  he  had,  ex  officio,  a  seat  among 
the  governors  of  Yale,  and  he  served  his  old  college 

1  Ms.  notes  of  Mr.  W.  Irving  Vinal.  2  Jackson  Ms. 


334  OLIVER   ELLSWORTH 

with  a  loyalty  quite  unaffected  by  any  memories  of 
the  strained  relations  of  earlier  days.  All  his  sons 
who  lived  to  manhood  were  graduated  there.  The 
college  for  its  part  had  in  1790  bestowed  upon  him 
the  degree  of  LL.D.,  a  rarer  honor  for  laymen  than  at 
present.  Princeton,  his  other  alma  mater,  gave  him 
the  same  decoration  the  same  year,  and  Dartmouth  in 
1797.  Had  he  desired  any  honor  in  the  gift  of  his 
state,  Connecticut  would  gladly  have  given  it.  He 
was  but  fifty-six  when  he  left  the  service  of  the  nation, 
and  though  he  once  remarked,  while  in  retirement, 
that  he  saw  nothing  to  envy,  or  anything  to  seek  for,1 
he  would  probably  have  preferred  to  remain  many 
years  in  harness.  But  his  malady  never  left  him,  and 
it  granted  him  but  few  intervals  of  ease  from  pain.  In 
1807,  the  last  year  of  his  life,  he  yielded  to  the  urgent 
solicitation  of  the  governor  and  the  people  of  the 
state,  and  consented  to  be  its  first  chief  justice,  —  the 
legislature  having  reconstructed  the  judiciary,  taken 
away  the  judicial  functions  of  the  council,  and  set  up 
a  new  supreme  court  of  appeals.  But  before  the  time 
came  to  enter  on  his  duties  a  savage  seizure  convinced 
him  that  he  ought  not  to  take  the  office,  and  he  with 
drew  his  acceptance. 

He  kept  an  intense  interest  in  national  politics,  and 
sometimes,  it  is  said,  grew  warmer  in  discussing  them 
than  became  his  years  or  accorded  with  the  dignity 
of  his  retirement.  But  he  was  not,  like  some  of  his 
fellows  in  political  exile,  continually  writing  bitter 
and  intriguing  letters  about  them.  For  that  matter, 
he  never  lost  his  old  dislike  of  the  pen.  "  Litera 
scripta  manet"  he  was  fond  of  repeating.  He  did  not 

1  Ms.  of  Oliver  Ellsworth,  Jr. 


HOME  335 

spare  ridicule  of  Fisher  Ames,  who  could  find  no 
other  outlet  but  letter-writing  for  the  wit  and  humor 
and  the  keen  interest  in  life  that  ill  health  forbade 
him  to  exercise  in  affairs.  "  Always  writing,  writing, 
writing,"  Ellsworth  complained  of  him.1  It  would 
have  been  well,  however,  for  the  good  fame  of  the 
defeated  party,  if  none  of  its  leaders  had  put  into  their 
talk  and  their  letters  anything  worse  than  the  not  very 
rancorous  satire  that  Fisher  Ames  put  into  his.  The 
latter  end  of  Federalism  makes  an  unpleasant  and 
an  unpardonable  chapter  of  our  political  history.  By 
having  no  part  in  it,  Ellsworth  avoided  a  damning 
error,  kept  safe  his  fame  as  a  patriot,  and  rendered  a 
real  though  negative  service  to  his  country. 

There  exists  no  evidence  whatever  that  connects 
him  with  any  of  the  blameworthy  doctrines  or  policies 
of  the  Federalists  in  these  years ;  and  we  can  hardly 
doubt  that  men  like  Pickering  and  Hillhouse,  if  they 
could  have  drawn  him  into  their  intrigues,  would  gladly 
have  made  use  of  his  name.  Beginning  with  a  narrow 
sectional  opposition  to  the  annexation  of  Louisiana, 
an  irreconcilable  group  of  fallen  leaders,  chiefly  from 
New  England,  nursed  their  discontent  into  disaffection, 
and  came  finally  to  designs  and  propaganda  which  we 
should  now  certainly  call  treasonable.  When  even  so 
honorable  a  man  as  Gouverneur  Morris  —  once  so 
strong  a  Unionist  —  could  inveigh  bitterly  against  the 
Union  as  a  failure  and  a  positive  evil,  Ellsworth,  who 
had  once  stood  for  state-rights  against  the  national 
principle,  might  have  been  expected  to  share  the 
reaction.  It  was  particularly  strong  in  his  own  Con 
necticut.  But  he  left  behind  him  not  one  word  in  the 

1  Wood  Ms. 


336  OLIVER   ELLSWORTH 

slightest  degree  disloyal  to  the  Union  or  the  govern 
ment.  Only  a  student  familiar  with  the  history,  and 
particularly  with  the  political  correspondence,  of  the 
period  of  his  retirement  can  understand  how,  by  reason 
of  this  mere  innocence  of  disaffection,  he  again  rose 
distinctly  above  the  level  of  the  wisdom  and  the  patri 
otism  of  contemporaries  otherwise  quite  as  eminent 
as  he. 

Nothing  in  his  life  in  retirement  showed  any  lapsing 
from  the  good  intention  and  performance  of  his  active 
years.  To  the  measure  of  his  remaining  strength,  he 
still  addressed  himself  to  the  service  of  the  public.  Cer 
tain  books  he  had  bought  in  England  having  aroused 
anew  his  interest  in  agriculture,  he  resolved  to  try  to 
introduce  better  methods  among  his  farmer  neighbors, 
and  to  that  end  he  began  in  August,  1804,  and  con 
tinued  for  two  years,  to  publish  in  the  Connecticut  Cou- 
rant  brief  essays  and  notes  on  agricultural  topics. 
Many  of  his  ideas  he  drew  from  the  excellent  agricul 
tural  writings  of  Arthur  Young,  better  known  for  an 
unrivalled  picture  of  French  civilization  under  the  old 
regime.  The  series  appeared  in  a  column  headed 
"  The  Farmer's  Repository,"  and  under  the  title  was 
a  motto  from  Dean  Swift,  —  "  Whoever  can  make  two 
ears  of  corn  or  two  blades  of  grass  grow  on  a  spot  of 
ground  where  only  one  grew  before,  deserves  better  of 
mankind  and  does  a  more  essential  service  to  his  coun 
try  than  the  whole  tribe  of  politicians  put  together." 
Noah  Webster,  and  perhaps  others,  made  occasional 
contributions.  Ellsworth's  own  papers  are  not  signed, 
but  he  wrote  many  more  than  any  one  else,  and  it  prob 
ably  would  not  be  impossible  to  distinguish  all  that  are 
his  by  their  style,  which  he  made  even  more  direct  and 


HOME  337 

unadorned  than  in  his  other  writings.  For  the  most 
part,  he  stuck  close  to  his  practical  object.  He  dis 
cussed  old  and  new  ways  of  growing  the  crops  that 
throve  best  in  Connecticut,  old  and  new  styles  of 
implements,  the  treatment  of  cattle,  and  the  various 
means  to  restore  worn-out  soils.  He  dwelt  longest  on 
fertilizers,  and  may  have  been  the  first  New  England 
writer  to  explain  the  value  of  gypsum  and  to  treat 
somewhat  scientifically  of  the  food  of  plants.  Prob 
ably  to  enliven  his  subject,  however,  he  also  gave  two 
or  three  papers  to  brief  accounts  of  agriculture  in  early 
ages  and  in  strange  lands.  Now  and  then,  but  not 
often,  he  enforced  his  contentions  with  illustrations 
drawn  from  his  own  keen  observations  in  other  parts 
of  the  country  or  in  Europe.  "  The  lowlands  of  Vir 
ginia,"  he  thus  finds  occasion  to  remark,  "fixed  as 
it  seemed  in  the  garden  of  Eden,  except  that  there 
is  no  account  of  the  Lord  ever  walking  there,  after 
cultivating  Indian  corn  and  tobacco  only,  till  a  hun 
dred  slaves  can  scarcely  support  one  master,  are  now 
beginning  to  cow-pen  their  fields  for  white  clover." 
Still  less  frequently,  he  indulges  in  some  terse  reflec 
tion  about  politics ;  as  when  he  moralizes  :  "  Happy 
would  it  be  if  other  good  qualities  could  be  as  easily 
renewed  as  those  of  land.  Would  to  God  there  were 
some  kind  of  tillage  also  by  which  a  republic  that  once 
loses  its  virtue  might  be  restored  to  virtue  again  "  —  a 
sentence  that  is  far  from  characteristic,  and  probably 
conveys,  with  its  gloom  and  its  note  of  passion,  the 
severest  view  of  politics  and  of  life  that  he  ever 
entertained. 

These  papers,  much  in  advance  of  the  ideas  and 
the  knowledge  of  even  the  more  progressive  farmers 


338  OLIVER   ELLSWORTH 

of  New  England,  do  not  seem  to  have  had  much  im 
mediate  effect.  "  The  Farmer's  Repository  "  may  in 
time  have  earned  for  Ellsworth  the  dubious  praise  in 
Swift's  famous  apothegm ;  but  the  farmers  of  the 
Connecticut  valley  probably  rated  his  statecraft 
above  his  efforts  to  teach  them  other  ways  in  their 
own  business  than  the  good  old  ways  they  had  learned 
from  their  fathers. 

But  his  neighbors  at  Windsor  could  never  complain 
of  him  for  putting  on  airs  of  superiority.  With  his  fel 
low-townsmen  and  old  acquaintance,  he  was  quite  as  un 
pretentious  as  John  Marshall  was  with  his.  Tradition 
whispered  of  him  that  in  his  youth  he  might  of  ten  have 
been  seen  eating  apple-pie  and  cracking  jokes  with 
other  young  fellows  at  Sergeant  Sam  Hayden's  tavern 
in  North  Windsor ;  and  now  that  he  was  both  rich 
and  famous,  he  passed  along  the  streets  of  his  native 
town  clad  like  a  respectable  farmer  and  greeting  all 
he  met  quite  as  his  equals.1  He  preferred  to  walk  the 
mile  or  more  from  his  house  to  his  church,  lest  he  give 
rise  to  envy  in  the  poor.  When  some  one  told  him 
that  he  ought,  since  he  could  afford  it,  to  buy  a  new 
sleigh,  of  a  better  kind  than  the  old  "  pung  "  sleigh  he 
used,  his  answer  was,  "  Well,  well,  Mr.  H ,  I  sup 
pose  I  might ;  but  if  I  should  get  a  new  sleigh  per 
haps  Mr.  H 's  family  would  think  they  needed  a 

better  one  than  they  have ;  and  if  you  get  one,  some 
other  neighbor  will  want  one  ;  everybody  in  town  will 
want  a  new  sleigh." 2  Having  bought  a  store  and  set 

1  "  We  ought  not/'  he  once  said  to  his  son,  "  to  talk  to  people  about 
anything  they  do  not  understand,  and  if  we  feel  our  superiority  to  others, 
not  to  display  it  in  society."    Ms.  of  Oliver  Ellsworth,  Jr. 

2  Jackson  Ms. 


HOME  339 

up  two  of  his  sons  as  merchants,  he  was  not  ashamed 
to  superintend  the  business  down  to  its  minutest 
details,  and  he  went  about  it  with  as  much  energy  and 
system  as  if  he  himself  had  never  had  any  other 
ambition  than  to  be  a  merchant.1  Happily,  there  are 
towns  and  villages  in  New  England  where  equally 
democratic  social  standards  still  prevail.  In  such  a 
community,  the  first  citizen  of  the  entire  republic,  if 
he  should  happen  to  have  been  born  there,  would 
stand,  and  doubtless  prefer  to  stand,  on  a  footing 
of  perfect  equality  with  all  his  neighbors. 

Ellsworth  was  quite  probably  the  wealthiest  man  in 
Windsor,  as  well  as  the  most  distinguished.  Unlike 
many  successful  public  financiers,  he  had  managed  his 
own  affairs  extremely  well.  One  of  his  ventures  in 
business  had  been  to  build  houses  in  Hartford  to  let 

—  a  kind  of  investment  not  at  all  common  in  his  day 

—  and  it  proved  very  successful.     All  his  investments, 
in  fact,  seem  to  have  proved  fortunate.     Half  a  century 
after  his  death,   a  competent  authority  declared  that 
his  holdings  were  still  excellent  properties. 

He  had  made  Elmwood  an  attractive  home. 
Whether  or  not  he  himself  built  the  entire  house  is 
not  certainly  known.  But  he  enlarged  it,  he  filled  it 
with  books  and  with  the  excellent  furnishings  affected 
by  the  well-to-do  of  his  times  in  New  England,  and  he 
planted  about  it  thirteen  elms,  in  honor  of  the  thirteen 
states  that  formed  the  original  Union.2  For  many 
years,  however,  he  had  spent  there  but  a  small  part  of 
every  year,  and  these  intervals  were  not  vacations. 

1  Jackson  Ms. 

2  A  family  tradition  has  it  that  the  day  South  Carolina  seceded  lightning 
blasted  one  of  them. 


340 


OLIVER   ELLSWORTH 


His  winter  in  England  was  probably  the  first  real 
vacation  he  had  ever  taken.  He  can  hardly  be  said 
to  have  lived  at  his  own  home  until  his  national  career 
was  finished.  He  and  his  wife  were  then  elderly 
people,  and  several  of  their  children  were  grown. 

Four  sons  and  three  daughters  had  survived  infancy 
and  childhood.  The  eldest  of  the  surviving  sons,  the 
second  to  bear  the  name  of  his  father,  and  who  had 
been  his  father's  intimate  companion  on  the  mission 
to  France,  died  in  the  summer  of  1805.  The  loss  of 
him  greatly  afflicted  Ellsworth,  deepened  the  gravity 
which  had  become  his  habitual  mood,  and  probably 
weakened  him  in  his  own  struggle  with  disease.  He 
lived,  however,  to  see  his  other  sons  and  daughters 
well  on  the  way  to  excellent  lives.  They  all  seem  to 
have  inherited  strong  family  traits  of  body  and  of 
mind.  One  son,  in  particular,  exhibited  in  very  high 
stations  —  as  congressman,  governor,  and  judge  — 
some  of  his  father's  best  characteristics.1  Another 
became  the  first  commissioner  of  patents. 

Ellsworth's  domestic  life,  thoroughly  New  England 
in  all  its  standards  and  ideals,  probably  differed  little 
from  that  of  his  neighbors,  or  from  that  of  his  fathers 
before  him.  He  took  his  duties  to  his  family  quite  as 
he  took  his  duties  to  the  state.  Provident  and  far- 
sighted,  he  taught  all  his  children  to  work,  and  insisted 
that  they  should  earn  what  they  had  for  their  pleasures. 
But  he  was  never  stern  or  forbidding  with  them,  for  he 
kept  all  his  life  the  habit  of  playing  with  children  for 
his  own  relaxation,  and  he  had  the  happy  gift  of  mak 
ing  them  companions.  While  attending  the  council 

1Ms.  notes  ofW.  Irving  Vinal;  Stiles's  "  Ancient  Windsor,"  II,  219- 
225. 


HOME  341 

at  Hartford,  he  would  spend  hours  in  intense  thought, 
pondering  out  some  decision,  then  suddenly,  on 
making  up  his  mind,  dismiss  the  subject  completely, 
and  look  about  for  some  child  to  romp  with.  His  own 
children  did  not  stand  in  awe  of  him.  He  drew  them 
pictures,  talked  with  them,  taught  them,  but  left  their 
mother  to  correct  them. 

His  habit  of  complete  absorption  in  whatever  matter 
he  might  be  engaged  with  had  the  effect  of  extreme 
absent-mindedness.  He  would  stand  for  hours  at  the 
window  of  his  study,  his  eyes  fixed  on  a  certain  tree, 
or  he  would  pace  the  room  or  the  hall,  taking  innu 
merable  pinches  of  snuff,  utterly  oblivious  of  every 
thing  but  the  subject  of  his  thoughts.  If  at  such 
times  a  meal  were  announced,  he  would  sit  through 
it  in  a  silence  which  no  one  ventured  to  interrupt ;  for 
experience  had  taught  his  family  that  it  was  useless  to 
try  to  break  the  current  of  his  thought.  If,  on  the 
other  hand,  he  became  much  interested  in  conversa 
tion  while  at  table,  he  would  go  on  talking,  consuming 
at  the  same  time  astounding  quantities  of  food  and 
countless  cups  of  tea,  until,  perhaps,  his  wife  remon 
strated.1  A  young  man  who  called  one  evening  at 
his  request,  finding  him  seated  in  deep  meditation  by 
the  fire,  greeted  the  other  members  of  the  family,  and 
had  spent  half  an  hour  conversing  with  them  when 
Ellsworth,  suddenly  awaking  to  the  presence  of  a 
visitor,  welcomed  him  cordially  and  proceeded  to  pre 
sent  him  to  the  rest  of  the  circle  as  if  he  had  just 
arrived.2  Taking  snuff  was  the  inevitable  accompani- 

1  Ms.  notes  of  Mr.  W.  Irving  Vinal ;  Jackson  Ms. ;  articles  in  New  York 
Evening  Post,  March-August,  1875,  and  July,  1876,  by  O.  E.  Wood; 
article  in  Hartford  Courant,  April  5,  1880,  by  Rev.  G.  I.  Wood.  2  Ibid. 


342  OLIVER   ELLSWORTH 

ment  of  these  long  intellectual  wrestlings,  and  with  all 
his  will  and  prudence  Ellsworth  never  overcame  the 
habit.  Once,  thinking  to  diminish  the  number  of  his 
pinches,  he  deposited  his  snuff-box  at  the  top  of  the 
garret  stairs,  so  that  he  would  have  to  climb  two  flights 
every  time  he  used  it.  Victims  of  similar  habits  will 
hardly  need  to  be  told  that  he  very  soon  abandoned 
this  device  and  put  his  snuff-box  back  in  his  pocket. 

Odd  as  his  fits  of  abstraction  sometimes  made  him, 
he  was  an  agreeable  companion,  fond  of  conversation, 
and  himself  a  good  talker,  with  a  great  fund  of  obser 
vation  and  anecdote.  Roger  Minott  Sherman,  who 
studied  law  in  his  office,  declared  that  when  a  subject 
thoroughly  aroused  him  he  talked  with  extraordinary 
brilliancy,  pouring  forth  a  perfect  stream  of  terse, 
aphoristic  wisdom.  Dr.  Dwight  put  him  in  the  first 
rank  as  a  conversationalist,  and  Dwight  had  a  very 
wide  acquaintance  among  men  of  parts.  He  him 
self,  moreover,  was  one  of  the  greatest  talkers  of  his 
time :  a  daughter  of  Roger  Sherman  used  to  say  that 
Dr.  Dwight  led  the  talk  in  every  company  in  which 
she  ever  saw  him,  —  and  she  saw  him  often,  —  unless 
Judge  Ellsworth  were  present,  but  that  then  he  be 
came  a  listener.  Democratic  as  he  was,  Ellsworth 
also  knew  how  to  suit  dress  and  manner  to  the  com 
pany  and  the  occasion.  He  was  by  no  means  careless 
of  his  appearance,  and  he  wore  well  the  stately  dress 
of  his  age,  —  always  with  a  white  ruffled  shirt  and  silk 
stockings  and  silver  knee-buckles.  He  was  neither 
plebeian  nor  aristocrat.  He  had  a  social  quality  and 
a  code  of  manners  not  known  in  countries  where  any 
kind  of  class  system  prevails,  and  doubtless  commoner 
in  New  England  than  in  any  other  part  of  America. 


HOME  343 

After  disease  had  seized  him,  softening  his  perhaps 
too  energetic  manner,  and  age  had  wrought  the  mellow 
ing  effect  it  nearly  always  has  with  men  of  his  strong 
type,  he  would  have  commended,  to  any  company  in 
the  world,  that  new  American  standard  of  manners 
and  of  manhood. 

He  died  in  his  own  home  at  Windsor,  close  to  the 
spot  where  he  was  born,  on  Nov.  26,  1807.  The  final 
ravages  of  his  disease  had  caused  him  excruciating 
suffering,  and  at  times  deprived  him  of  his  reason. 
But  he  held  fast  to  his  religious  convictions,  and  bore 
his  agony  with  fortitude.  A  formal  discourse,  after 
the  fashion  of  the  time,  was  pronounced  at  his  funeral 
in  the  church  he  had  helped  to  build,  and  a  crowd  of 
mourners  followed  him  to  his  grave  in  the  old  burial 
ground.  It  was  universally  considered  that  at  the 
time  of  his  death  he  was  the  first  citizen  of  Connecti 
cut.  Had  not  John  Adams  been  alive,  he  would  have 
been  the  most  distinguished  survivor  of  the  group  of 
statesmen  whom  New  England  had  contributed  to 
the  Revolution  and  the  founding  of  the  national 
government. 

His  entire  character  seems  now  to  belong  to  a  past 
phase  of  American  life.  His  career  has  an  effect  of 
iterating  lessons  that  most  Americans  have  learned  in 
their  childhood.  They  are  lessons  which  our  national 
experience  has  never  falsified,  but  which,  unhappily, 
we  sometimes  find  merely  irksome,  with  their  insist 
ence  on  the  elementary  obligations  of  citizenship  in 
a  republic.  Because  his  character  was  so  free  from 
intricacy,  because  the  sources  of  his  strength  are  so 
plain,  his  life  is  a  particularly  good  instance  of  the 
truth  that  for  the  highest  and  most  difficult  tasks  in 


344  OLIVER   ELLSWORTH 

the  service  of  a  free  people  the  really  essential  qualities 
are  such  not  uncommon  qualities  as  energy,  industry, 
good  sense,  steadfastness,  sagacity.  These,  rightly 
devoted,  he  proved  to  be  enough.  Of  them  all,  sa 
gacity  alone  —  practical  wisdom,  the  judicial  quality 
in  action  —  may  perhaps  be  considered  a  special  gift,  a 
natural  endowment.  He  had  always  a  quick  sense  of 
the  controlling  factors  in  situations  and  problems,  and 
a  keen  instinct  for  the  main  chance.  He  knew  when  to 
be  cautious  and  when  to  be  bold.  He  judged  shrewdly 
men,  parties,  causes,  occasions.  But  the  basis  of  this 
accomplishment,  and  indeed  of  all  his  competence,  was 
that  common  sense  which  the  people  of  his  own  New 
England  hold  indispensable  even  to  genius.  The 
furnishing  of  his  mind  was  neither  profuse  nor  rich, 
but  like  the  furnishing  of  the  better  New  England 
houses  of  his  time.  Many  intellectual  and  emotional 
experiences,  now  not  uncommon  among  educated 
Americans,  he  never  knew.  Many  aspects  of  human 
life  he  probably  never  contemplated.  He  had  but 
a  slight  sense  of  the  beautiful  in  art  and  nature. 
The  formality  of  the  age  straitened  him,  as  it  did 
Washington.  The  range  of  his  tastes  and  sympa 
thies,  like  that  of  most  colonials,  would  to-day  seem 
narrow.  But  he  lived  a  good  life,  and  he  did  a  man's 
part  in  a  very  noble  business. 

He  gave  his  whole  strength  to  the  hardest,  most 
prosaic  work  of  an  enterprise  that  has  proved  pro 
digiously  successful :  to  the  details  of  the  task  of 
building  up,  out  of  a  few  struggling,  loosely  joined 
English  colonies,  a  free  federal  nation,  which  within 
a  century  has  many  times  doubled  its  area  and  its 
numbers  and  its  wealth,  and  is  now  fast  swelling  into 


HOME  345 

a  mighty  empire.  His  handiwork  passed  integrally 
into  the  structure  of  a  political  organism  that  endured, 
and  took  on  life,  and  grew,  so  that  it  is  become,  to 
millions  of  human  beings  of  all  creeds  and  races,  a 
bond  of  union,  a  shelter  from  oppression,  an  oppor 
tunity,  an  inspiration.  Throwing  himself  in  his 
utterly  absorbed  way  into  the  responsibilities  which 
confronted  his  generation,  he  helped  to  organize 
security  and  prosperity  for  multitudes  of  future  gen 
erations.  Having  only  the  wisdom  of  his  age,  he 
shared  in  one  great  error,  in  that  he  consented  to 
prolong  the  worst  of  our  national  offences.  But  in 
the  avoidance  of  errors  he  was,  on  the  whole,  singu 
larly  fortunate.  Our  debt  to  him  —  to  this  old-fash 
ioned  patriot,  to  this  exemplar  of  hard-working  states 
manship —  is  real  and  enduring  ;  for  we  owe  to  him 
essential  parts  of  the  political  system  under  which  we 
live.  His  was  not  a  career,  nor  were  his  the  gifts  or 
the  personality,  to  bring  his  name  often  to  men's  lips, 
or  keep  his  image  in  their  eyes.  But  his  hard-earned 
reputation  is  secure.  It  rests  on  the  same  foundations 
that  uphold  the  strength  and  greatness  of  his  country. 


APPENDIX   A 

LETTER  OF  SHERMAN  AND  ELLSWORTH,  MEMBERS 
OF  THE  CONTINENTAL  CONGRESS,  TO  THE  GOV 
ERNOR  OF  CONNECTICUT 

"  PHILADELPHIA  March  20,  1 780. 

"  SIR  :  The  President  will  transmit  to  your  Excel 
lency  the  resolutions  of  Congress  for  sinking  the  Con 
tinental  bills  of  credit  and  issuing  new  bills  on  the 
credit  of  the  several  states,  which  we  hope  will  be 
approved  by  your  Excellency  and  the  Honorable 
General  Assembly. 

"  It  was  judged  impracticable  to  carry  on  the  war 
with  the  present  currency,  and  no  other  plan  has  been 
proposed  which  appeared  so  likely  to  relieve  us  from 
the  embarrassments  of  a  fluctuating  currency,  as  that 
which  has  been  adopted  by  Congress.  The  deprecia 
tion  here  has  been  at  the  rate  of  sixty  for  one,  and  in 
the  Southern  states  from  forty  to  fifty.  Neither  the 
scarcity,  nor  collection  of  taxes  has  had  any  effect  to 
appreciate  or  fix  its  value. 

"  'Tis  apprehended  that  the  new  bills  will  be  effectu 
ally  secured  against  depreciation,  from  the  smallness 
of  the  quantity  to  be  in  circulation,  the  funds  provided 
for  their  redemption,  the  shortness  of  the  period,  and 
the  payments  of  an  annual  interest. 

"  The  preparing  them  under  the  direction  of  the 
Board  of  the  Treasury,  and  the  insurance  of  payment 
by  the  United  States  in  case  any  state  shall  by  the 
event  of  the  war  be  rendered  incapable  of  redeeming 
them,  will  give  them  a  currency  throughout  the  United 
States,  and 'be  a  security  against  counterfeits. 

347 


348  APPENDIX   A 

"The  emission  of  bills  will  not  only  introduce  a 
staple  medium  of  trade,  but  will  increase  the  Revenue 
the  amount  of  Five  millions  of  Dollars  equal  to  specie. 
The  sixth  tenths  of  the  bills  to  be  emitted  will  enable 
the  states  to  purchase  the  specific  supplies  called  for 
by  the  Resolution  of  the  25th  of  February  last,  and 
the  remaining  four  tenths  will  supply  the  Continental 
Treasury  for  paying  the  army,  etc.,  while  the  states 
are  collecting  the  old  bills  by  taxes,  and  although  it  is 
recommended  to  collect  in  the  old  Continental  bills 
by  monthly  assessments,  it  may  be  expedient  for  the 
States  to  allow  new  bills  to  be  exchanged  for  old,  that 
the  old  may  be  drawn  out  of  circulation  as  soon  as 
possible,  to  prevent  further  counterfeits ;  and  if  there 
should  be  scarcity  of  money  people  might  be  allowed 
to  pay  their  taxes  in  provisions  delivered  at  the  maga 
zines,  at  the  prices  fixed  by  Congress. 

"  The  new  bills  will  be  prepared  and  forwarded  to 
the  States  as  soon  as  possible. 

"  We  hear  that  the  honorable  Assembly  have 
ordered  a  new  emission  of  Bills.  We  beg  leave  to 
submit  to  your  Excellency  whether  it  will  not  be 
expedient  to  stop  the  issue  of  them  and  adopt  the 
plan  recommended  by  Congress. 

"  We  should  be  sorry  to  have  that  fail  of  the  good 
effects  expected  from  it,  by  any  act,  or  omission  on  the 
part  of  the  States. 

"  The  same  proportions  are  kept  up  in  the  present 
requisitions  as  in  the  Resolution  of  the  yth  of  October 
last,  wherein  Connecticut  is  rated  much  too  high ;  but 
hope  that  won't  prevent  her  compliance,  at  least  to  the 
amount  of  her  quota.  Perhaps  her  quota  in  present 
circumstances  would  be  more  than  one  eleventh  part  of 
the  whole. 


APPENDIX  A  349 

"  Repeated  assurances  have  been  given  by  Congress 
that  those  States  which  do  more  than  their  proportion 
shall  be  equitably  compensated. 

"  There  is  a  Report  before  Congress  for  fixing  the 
rate  in  specie,  at  which  the  loan  office  certificate  will 
be  paid. 

"  It  is  reported  that  a  new  regulation  of  the  Quarter- 
Master's  and  other  staff  departments,  will  soon  be 
established  on  the  most  economical  plan,  whereby 
much  expense  will  be  saved.  They  will  be  accommo 
dated  to  the  late  regulation  of  making  purchases  by 
the  States.  The  prices  of  the  specific  articles  to  be 
furnished  by  the  States  were  estimated  at  about  fifty 
per  cent,  above  the  prices  of  1774.  They  include  all 
expenses  of  purchasing  and  delivering  them  into  the 
magazines.  The  motives  for  adopting  the  measure 
were,  the  rendering  the  supplies  more  certain  and 
equable  among  the  States,  and  to  prevent  fraud  and 
abuses.  And  the  aid  of  the  States  in  procuring  the 
supplies  was  (thought  ?)  to  be  absolutely  necessary. 

"  By  the  letter  from  General  Lincoln  of  the  22d 
ultimo  we  are  informed  that  part  of  the  British  forces 
that  left  New  York,  landed  at  St.  John's  and  St.  James' 
Islands  near  Charleston,  the  numbers  not  ascertained ; 
but  he  thinks  there  is  a  good  prospect  of  making  a 
successful  opposition  to  them. 

"  Mr.  Laurens  expected  to  sail  for  Europe  the  26th 
of  February. 

"  With   the   greatest    Respect  your  Excellency's 
humble  servants, 

"  ROGER  SHERMAN, 
"OLIVER  ELLSWORTH. 
"  His  Excellency  Gov.  Trumbull? 


APPENDIX   B 

SPEECH    OF    ELLSWORTH    IN    THE    CONNECTICUT 
CONVENTION   OF  1788 

MR.  PRESIDENT  :  This  is  a  most  important  clause  in 
the  Constitution ;  and  the  gentlemen  do  well  to  offer 
all  the  objections  which  they  have  against  it.  Through 
the  whole  of  this  debate,  I  have  attended  to  the  ob 
jections  which  have  been  made  against  this  clause ; 
and  I  think  them  all  to  be  unfounded.  The  clause  is 
general ;  it  gives  the  general  legislature  "  power  to 
lay  and  collect  taxes,  duties,  imposts,  and  excises,  to 
pay  the  debts  and  provide  for  the  common  defence 
and  general  welfare  of  the  United  States."  There 
are  three  objections  against  this  clause  —  first,  that 
it  is  too  extensive,  as  it  extends  to  all  the  objects  of 
taxation ;  secondly,  that  it  is  partial ;  thirdly,  that 
Congress  ought  not  to  have  power  to  lay  taxes  at 
all. 

The  first  objection  is,  that  this  clause  extends  to  all 
the  objects  of  taxation.  But  though  it  does  extend  to 
all,  it  does  not  extend  to  them  exclusively.  It  does 
not  say  that  Congress  shall  have  all  these  sources  of 
revenue,  and  the  states  none.  All  excepting  the  im 
post  shall  lie  open  to  the  states.  This  state  owes  a 
debt ;  it  must  provide  for  the  payment  of  it.  So  do 
all  the  other  states.  This  will  not  escape  the  atten 
tion  of  Congress.  When  making  calculations  to  raise 
a  revenue,  they  will  bear  this  in  mind.  They  will  not 

35° 


APPENDIX   B  351 

take  away  that  which  is  necessary  for  the  states. 
They  are  the  head,  and  will  take  care  that  the  mem 
bers  do  not  perish.  The  state  debt,  which  now  lies 
heavy  upon  us,  arose  from  the  want  of  powers  in  the 
federal  system.  Give  the  necessary  powers  to  the 
national  government,  and  the  state  will  not  be  again 
necessitated  to  involve  itself  in  debt  for  its  defence  in 
war.  It  will  lie  upon  the  national  government  to 
defend  all  the  states,  to  defend  all  its  members,  from 
hostile  attacks.  The  United  States  will  bear  the 
whole  burden  of  war.  It  is  necessary  that  the  power 
of  the  general  legislature  should  extend  to  all  the 
objects  of  taxation,  that  government  should  be  able  to 
command  all  the  resources  of  the  country ;  because 
no  man  can  tell  what  our  exigencies  may  be.  Wars 
have  now  become  rather  wars  of  the  purse  than  of  the 
sword.  Government  must,  therefore,  be  able  to  com 
mand  the  whole  power  of  the  purse ;  otherwise  a 
hostile  nation  may  look  into  our  Constitution,  see 
what  resources  are  in  the  power  of  government,  and 
calculate  to  go  a  little  beyond  us ;  thus  they  may 
obtain  a  decided  superiority  over  us,  and  reduce  us  to 
the  utmost  distress.  A  government  which  can  com 
mand  but  half  its  resources  is  like  a  man  with  but  one 
arm  to  defend  himself. 

The  second  objection  is,  that  the  impost  is  not  a 
proper  mode  of  taxation;  that  it  is  partial  to  the 
Southern  states.  I  confess  I  am  mortified  when  I 
find  gentlemen  supposing  that  their  delegates  in  Con 
vention  were  inattentive  to  their  duty,  and  made  a 
sacrifice  of  the  interests  of  their  constituents.  If, 
however,  the  impost  be  a  partial  mode,  this  circum 
stance,  high  as  my  opinion  of  it  is,  would  weaken  my 


352  APPENDIX   B 

attachment  to  it ;  for  I  abhor  partiality.  But  I  think 
there  are  three  special  reasons  why  an  impost  is  the 
best  way  of  raising  a  national  revenue. 

The  first  is,  it  is  the  most  fruitful  and  easy  way. 
All  nations  have  found  it  to  be  so.  Direct  taxation 
can  go  but  little  way  towards  raising  a  revenue.  To 
raise  money  in  this  way,  people  must  be  provident ; 
they  must  constantly  be  laying  up  money  to  answer 
the  demands  of  the  collector.  But  you  cannot  make 
people  thus  provident.  If  you  do  anything  to  the 
purpose,  you  must  come  in  when  they  are  spending, 
and  take  a  part  with  them.  This  does  not  take  away 
the  tools  of  a  man's  business,  or  the  necessary  utensils 
of  his  family :  it  only  comes  in  when  he  is  taking  his 
pleasure,  and  feels  generous ;  when  he  is  laying  out  a 
shilling  for  superfluities,  it  takes  twopence  of  it  for 
public  use,  and  the  remainder  will  do  him  as  much 
good  as  the  whole.  I  will  instance  two  facts  which 
show  how  easily  and  insensibly  a  revenue  is  raised  by 
indirect  taxation.  I  suppose  people  in  general  are 
not  sensible  that  we  pay  a  tax  to  the  State  of  New 
York.  Yet  it  is  an  incontrovertible  fact,  that  we,  the 
people  of  Connecticut,  pay  annually  into  the  treasury 
of  New  York  more  than  fifty  thousand  dollars. 
Another  instance  I  will  mention  ;  one  of  our  common 
river  sloops  pays  in  the  West  Indies  a  portage  bill  of 
£60.  This  is  a  tax  which  foreigners  lay  upon  us,  and 
we  pay  it ;  for  a  duty  laid  upon  our  shipping,  which 
transports  our  produce  to  foreign  markets,  sinks  the 
price  of  our  produce,  and  operates  as  an  effectual  tax 
upon  those  who  till  the  ground  and  bring  the  fruits  of 
it  to  market.  All  nations  have  seen  the  necessity  and 
propriety  of  raising  a  revenue  by  indirect  taxation, 


APPENDIX  B  353 

by  duties  upon  articles  of  consumption.  France 
raises  a  revenue  of  twenty-four  millions  sterling  per 
annum  ;  and  it  is  chiefly  in  this  way.  Fifty  millions  of 
livres  they  raise  upon  the  single  article  of  salt.  The 
Swiss  Cantons  raise  almost  the  whole  of  their  revenue 
upon  salt.  Those  states  purchase  all  the  salt  which 
is  to  be  used  in  the  country :  they  sell  it  out  to  the 
people  at  an  advanced  price ;  the  advance  is  the 
revenue  of  the  country.  In  England,  the  whole 
public  revenue  is  about  twelve  millions  sterling  per 
annum.  The  land  tax  amounts  to  about  two  millions ; 
the  window,  and  some  other  taxes,  to  about  two 
millions  more.  The  other  eight  millions  are  raised 
upon  articles  of  consumption.  The  whole  standing 
army  of  Great  Britain  could  not  enforce  the  collection 
of  this  vast  sum  by  direct  taxation.  In  Holland,  their 
prodigious  taxes,  amounting  to  forty  shillings  for  each 
inhabitant,  are  levied  chiefly  upon  articles  of  consump 
tion.  They  excise  everything,  not  even  excepting 
their  houses  of  infamy. 

The  experiments,  which  have  been  made  in  our  own 
country,  show  the  productive  nature  of  indirect  taxes. 
The  imports  into  the  United  States  amount  to  a  very 
large  sum.  They  will  never  be  less,  but  will  continue 
to  increase  for  centuries  to  come.  As  the  population 
of  our  country  increases,  the  imports  will  necessarily 
increase.  They  will  increase  because  our  citizens  will 
choose  to  be  farmers,  living  independently  on  their 
freeholds,  rather  than  to  be  manufacturers,  and  work 
for  a  groat  a  day.  I  find  by  calculation,  that  a  general 
impost  of  5  per  cent,  would  raise  the  sum  of  ,£245,000 
per  annum,  deducting  8  per  cent,  for  the  charges  of 
collecting.  A  further  sum  might  be  deducted  for 

2A 


354 


APPENDIX   B 


smuggling  —  a  business  which  is  too  well  understood 
among  us,  and  which  is  looked  upon  in  too  favorable 
a  light.  But  this  loss  in  the  public  revenue  will  be 
overbalanced  by  an  increase  of  importations.  And  a 
further  sum  may  be  reckoned  upon  some  articles  which 
will  bear  a  higher  duty  than  the  one  recommended  by 
Congress.  Rum,  instead  of  4^.  per  gallon,  may  be  set 
higher  without  detriment  to  our  health  or  morals.  In 
England,  it  pays  a  duty  of  45-.  6d.  the  gallon.  Now, 
let  us  compare  this  source  of  revenue  with  our  national 
wants.  The  interest  of  the  foreign  debt  is  ,£130,000 
lawful  money,  per  annum.  The  expenses  of  the  civil 
list  are  ,£37,000.  There  are  likewise  further  expenses 
for  maintaining  the  frontier  posts,  for  the  support  of 
those  who  have  been  disabled  in  the  service  of  the 
continent,  and  some  other  contingencies,  amounting, 
together  with  the  civil  list,  to  £  130,000.  This  sum, 
added  to  the  interest  of  the  foreign  debt,  will  be 
,£260,000.  The  consequence  follows,  that  the  avails 
of  the  impost  will  pay  the  interest  of  the  whole  for 
eign  debt,  and  nearly  satisfy  those  current  national 
expenses.  But  perhaps  it  will  be  said  that  these 
paper  calculations  are  overdone,  and  that  the  real 
avails  will  fall  far  short.  Let  me  point  out,  then, 
what  has  actually  been  done.  In  only  three  of  the 
states,  in  Massachusetts,  New  York  and  Pennsyl 
vania,  .£160,000  or  ,£180,000  per  annum  have  been 
raised  by  impost.  From  this  fact,  we  may  certainly 
conclude  that,  if  a  general  impost  should  be  laid,  it 
would  raise  a  greater  sum  than  I  have  calculated.  It 
is  a  strong  argument  in  favor  of  an  impost,  that  the 
collection  of  it  will  interfere  less  with  the  internal 
police  of  the  state  than  any  other  species  of  taxation. 


APPENDIX   B  355 

It  does  not  fill  the  country  with  revenue  officers,  but 
is  confined  to  the  sea-coast,  and  is  chiefly  a  water 
operation.  Another  weighty  reason  in  favor  of  this 
branch  of  the  revenue  is,  if  we  do  not  give  it  to  Con 
gress,  the  individual  states  will  have  it.  It  will  give 
some  states  an  opportunity  for  oppressing  others,  and 
destroy  all  harmony  between  them.  If  we  would  have 
the  states  friendly  to  each  other,  let  us  take  away  this 
bone  of  contention,  and  place  it,  as  it  ought  in  justice 
to  be  placed,  in  the  hands  of  the  general  government. 
"  But,"  says  an  honorable  gentleman  near  me,  "  the 
impost  will  be  a  partial  tax ;  the  Southern  states  will 
pay  but  little  in  comparison  with  the  Northern."  I 
ask,  What  reason  is  there  for  this  assertion  ?  Why, 
says  he,  we  live  in  a  cold  climate,  and  want  warming- 
Do  not  they  live  in  a  hot  climate,  and  want  quench 
ing?  Until  you  get  as  far  south  as  the  Carolinas, 
there  is  no  material  difference  in  the  quantity  of 
clothing  which  is  worn.  In  Virginia,  they  have  the 
same  coarse  clothing  that  we  have ;  in  Carolina,  they 
have  a  great  deal  of  cold,  raw,  chilly  weather ;  even  in 
Georgia,  the  river  Savannah  has  been  crossed  upon 
the  ice.  And  if  they  do  not  wear  quite  so  great  a 
quantity  of  clothing,  in  those  states  as  with  us,  yet 
people  of  rank  wear  that  which  is  of  a  much  more 
expensive  kind.  In  these  states,  we  manufacture  one- 
half  of  our  clothing,  and  all  our  tools  of  husbandry ; 
in  those,  they  manufacture  none,  nor  ever  will.  They 
will  not  manufacture,  because  they  find  it  much  more 
profitable  to  cultivate  their  lands,  which  are  exceed 
ingly  fertile.  Hence,  they  imporlt  almost  everything, 
not  excepting  the  carriages  in  which  they  ride,  the 
hoes  with  which  they  till  the  ground,  and  the  boots 


356  APPENDIX   B 

which  they  wear.  If  we  doubt  of  the  extent  of  their 
importations,  let  us  look  at  their  exports.  So  exceed 
ingly  fertile  and  profitable  are  their  lands,  that  a  hun 
dred  large  ships  are  every  year  loaded  with  rice  and 
indigo  from  the  single  port  of  Charleston.  The  rich 
return  of  these  cargoes  of  immense  value  will  be  all 
subject  to  the  impost  Nothing  is  omitted ;  a  duty  is 
to  be  paid  upon  the  blacks  which  they  import.  From 
Virginia,  their  exports  are  valued  at  a  million  sterling 
per  annum ;  the  single  article  of  tobacco  amounts  to 
seven  or  eight  hundred  thousand.  How  does  this 
come  back?  Not  in  money;  for  the  Virginians  are 
poor,  to  a  proverb,  in  money.  They  anticipate  their 
crops ;  they  spend  faster  than  they  earn ;  they  are  ever 
in  debt.  Their  rich  exports  return  in  eatables,  in 
drinkables,  and  in  wearables.  All  these  are  subject 
to  the  impost.  In  Maryland,  their  exports  are  as 
great  in  proportion  as  those  of  Virginia.  The  im 
ports  and  exports  of  the  Southern  states  are  quite 
as  great  in  proportion  as  those  of  the  Northern. 
Where,  then,  exists  this  partiality,  which  has  been 
objected?  It  exists  nowhere  but  in  the  uninformed 
mind. 

But  there  is  one  objection,  Mr.  President,  which  is 
broad  enough  to  cover  the  whole  subject.  Says  the 
objector,  Congress  ought  not  to  have  power  to  raise 
any  money  at  all.  Why  ?  Because  they  have  the 
power  of  the  sword ;  and  if  we  give  them  the  power 
of  the  purse,  they  are  despotic.  But  I  ask,  sir,  if  ever 
there  were  a  government  without  the  power  of  the 
sword  and  the  purse  ?  This  is  not  a  new  coined 
phrase ;  but  it  is  misapplied ;  it  belongs  to  quite 
another  subject.  It  was  brought  into  use  in  Great 


APPENDIX  B  357 

Britain,  where  they  have  a  king  vested  with  heredi 
tary  power.  Here,  say  they,  it  is  dangerous  to  place 
the  power  of  the  sword  and  the  purse  in  the  hands  of 
one  man,  who  claims  an  authority  independent  of  the 
people;  therefore  we  will  have  a  Parliament.  But 
the  king  and  Parliament  together,  the  supreme  power 
of  the  nation,  —  they  have  the  sword  and  the  purse. 
And  they  must  have  both  ;  else  how  could  the  country 
be  defended  ?  For  the  sword  without  the  purse  is  of 
no  effect ;  it  is  a  sword  in  the  scabbard.  But  does  it 
follow,  because  it  is  dangerous  to  give  the  power  of 
the  sword  and  purse  to  an  hereditary  prince,  who  is 
independent  of  the  people,  that  therefore  it  is  danger 
ous  to  give  it  to  the  Parliament  —  to  Congress,  which 
is  your  Parliament,  to  men  appointed  by  yourselves, 
and  dependent  upon  yourselves  ?  This  argument 
amounts  to  this :  you  must  cut  a  man  in  two  in  the 
middle,  to  prevent  his  hurting  himself. 

But,  says  the  honorable  objector,  if  Congress  levies 
money,  they  must  legislate.  I  admit  it.  Two  legis 
lative  powers,  says  he,  cannot  legislate  in  the  same 
place.  I  ask,  why  can  they  not  ?  It  is  not  enough 
to  say  they  cannot.  I  wish  for  some  reason.  I  grant 
that  both  cannot  legislate  upon  the  same  object  at 
the  same  time,  and  carry  into  effect  laws  which  are 
contrary  to  each  other.  But  the  constitution  excludes 
everything  of  this  kind.  Each  legislature  has  its 
province  ;  their  limits  may  be  distinguished.  If  they 
will  run  foul  of  each  other ;  if  they  will  be  trying  who 
has  the  hardest  head,  it  cannot  be  helped.  The  road 
is  broad  enough  ;  but  if  two  men  will  jostle  each  other, 
the  fault  is  not  in  the  road.  Two  several  legislatures 
have  in  fact  existed  and  acted  at  the  same  time  in  the 


358  APPENDIX   B 

same  territory.  It  is  in  vain  to  say  they  cannot  exist, 
when  they  have  actually  done  it.  In  the  time  of  war, 
we  have  an  army.  Who  made  the  laws  for  the  army  ? 
By  whose  authority  were  offenders  tried  and  executed  ? 
Congress.  By  their  authority  a  man  was  taken,  tried, 
condemned,  and  hanged,  in  this  very  city.  He 
belonged  to  the  army ;  he  was  a  proper  subject  of 
military  law ;  he  deserted  to  the  enemy,  he  deserved 
his  fate.  Wherever  the  army  was,  in  whatever  state, 
there  Congress  had  complete  legislative,  judicial,  and 
executive  powers.  This  very  spot  where  we  now  are 
is  a  city.  It  has  complete  legislative,  judicial,  and 
executive  powers ;  it  is  a  complete  state  in  miniature. 
Yet  it  breeds  no  confusion,  it  makes  no  schism. 
The  city  has  not  eaten  up  the  state,  nor  the  state  the 
city.  But  if  there  be  a  new  city,  if  it  have  not  had 
time  to  unfold  its  principles  —  I  will  instance  the  city 
of  New  York,  which  is  and  long  has  been,  an  impor 
tant  part  of  the  state  —  it  has  been  found  beneficial ; 
its  powers  and  privileges  have  not  clashed  with  the 
state.  The  city  of  London  contains  three  or  four 
times  as  many  inhabitants  as  the  whole  state  of 
Connecticut.  It  has  extensive  powers  of  government, 
and  yet  it  makes  no  interference  with  the  general 
government  of  the  kingdom.  This  constitution 
defines  the  extent  of  the  powers  of  the  general  gov 
ernment.  If  the  general  legislature  should  at  any 
time  overleap  their  limits,  the  judicial  department  is 
a  constitutional  check.  If  the  United  States  go  be 
yond  their  powers,  if  they  make  a  law  which  the  con 
stitution  does  not  authorize,  it  is  void,  and  the  judicial 
power,  the  national  judges,  who,  to  secure  their  im 
partiality,  are  to  be  made  independent,  will  declare  it 


APPENDIX   B  359 

to  be  void.  On  the  other  hand,  if  the  states  go 
beyond  their  limits,  if  they  make  a  law  which  is  an 
usurpation  upon  the  general  government,  the  law  is 
void,  and  upright,  independent  judges  will  declare  it 
to  be  so.  Still,  however,  if  the  United  States  and  the 
individual  states  will  quarrel,  if  they  want  to  fight, 
they  may  do  it,  and  no  frame  of  government  can 
possibly  prevent  it.  It  is  sufficient  for  this  constitu 
tion,  that,  so  far  from  laying  them  under  a  necessity 
of  contending,  it  provided  every  reasonable  check 
against  it.  But  perhaps,  at  some  time  or  other,  there 
will  be  a  contest ;  the  states  may  rise  against  the 
general  government.  If  this  do  take  place,  if  all  the 
states  combine,  if  all  oppose,  the  whole  will  not  eat 
up  the  members,  but  the  measure  which  is  opposed  to 
the  sense  of  the  people  will  prove  abortive.  In  re 
publics,  it  is  a  fundamental  principle  that  the  majority 
govern,  and  that  the  minority  comply  with  the  general 
voice.  How  contrary,  then,  to  republican  principles, 
how  humiliating,  is  our  present  situation !  A  single 
state  can  rise  up,  and  put  a  veto  upon  the  most  im 
portant  public  measures.  We  have  seen  this  actually 
take  place.  A  single  state  has  controlled  the  general 
voice  of  the  Union ;  a  minority,  a  very  small  minority, 
has  governed  us.  So  far  is  this  from  being  con 
sistent  with  republican  principles,  that  it  is,  in  effect, 
the  worst  species  of  monarchy. 

Hence  we  see  how  necessary  for  the  Union  is  a 
coercive  principle.  No  man  pretends  the  contrary; 
we  all  see  and  feel  this  necessity.  The  only  question 
is,  Shall  it  be  a  coercion  of  law,  or  a  coercion  of  arms? 
There  is  no  other  possible  alternative.  Where  will 
those  who  oppose  a  coercion  of  law  come  out? 


360  APPENDIX  B 

Where  will  they  end?  A  necessary  consequence 
of  their  principles  is  a  war  of  the  states  one  against 
the  other.  I  am  for  coercion  by  law  —  that  coercion 
which  acts  only  upon  delinquent  individuals.  This 
constitution  does  not  attempt  to  coerce  sovereign 
bodies,  states,  in  their  political  capacity.  No  coer 
cion  is  applicable  to  such  bodies,  but  that  of  an 
armed  force.  If  we  should  attempt  to  execute  the 
laws  of  the  Union  by  sending  an  armed  force  against 
a  delinquent  state,  it  would  involve  the  good  and 
bad,  the  innocent  and  guilty,  in  the  same  calamity. 

But  this  legal  coercion  singles  out  the  guilty  indi 
vidual  and  punishes  him  for  breaking  the  laws  of  the 
Union.  All  men  will  see  the  reasonableness  of  this  ; 
they  will  acquiesce,  and  say,  Let  the  guilty  suffer. 

How  have  the  morals  of  the  people  been  depraved 
for  the  want  of  an  efficient  government,  which  might 
establish  justice  and  righteousness.  For  the  want  of 
this,  iniquity  has  come  in  upon  us  like  an  overflowing 
flood.  If  we  wish  to  prevent  this  alarming  evil,  if  we 
wish  to  protect  the  good  citizen  in  his  right,  we  must 
lift  up  the  standard  of  justice;  we  must  establish  a 
national  government,  to  be  enforced  by  the  equal 
decisions  of  law,  and  the  peaceable  arm  of  the 
magistrate. 


INDEX 


Active,  case  of  the,  68-70,  188. 

Adams,  Andrew,  51. 

Adams,  John,  57,  210,  343  ;  and  matters 
of  state  etiquette,  182  ;  signs  judi 
ciary  bill,  197  ;  notes  of  Ellsworth's 
speeches,  202 ;  praise  of  Ellsworth 
by,  231-232  ;  Ellsworth  administers 
oath  to,  at  inauguration  as  President, 
242  ;  weak  points  of,  264 ;  lukewarm 
loyalty  of  Federalists  to,  264-265  ; 
foreign  affairs  during  presidency  of, 
266 ;  sends  Marshall,  Pinckney,  and 
Gerry  to  France,  267-268  ;  gains  tem 
porary  popularity  by  stand  regarding 
French  treatment  of  American  en 
voys,  268-269 ;  growing  feud  of, 
with  Hamilton,  269-270,  272-273; 
appoints  Ellsworth,  Davie,  and  Mur 
ray  envoys  to  France,  273  ;  calls  on 
Ellsworth  at  Elmwood,  277-278 ; 
Ellsworth  visits,  at  Trenton,  278- 
280 ;  effect  of  Ellsworth's  conven 
tion  on  interests  of,  311-312;  feud 
of,  with  Hamilton  reaches  its  height, 
314-315  ;  acceptance  of  convention 

by,  3i5»3r7- 

Adams's  Works  cited,  202,  277,  278,  279, 
290,  315. 

Adams,  Samuel,  57,  59. 

Adams  vs.  Kellogg,  case  of,  332. 

Addison,  Judge,  270. 

Agriculture,  Ellsworth's  efforts  to  pro 
mote,  336-338. 

Alien  and  Sedition  acts,  Ellsworth's 
defence  of,  265-266;  provisions  of, 
270. 

Allegiance,  Ellsworth's  ruling  concern 
ing  perpetual,  257-262. 

Allen,  Ethan,  47. 

Allyn,  John,  26  n.,  332. 

"  American  Revolution,"  Trevelyan's, 
82  n. 


American  Whig  Society,  debating  club 
at  Princeton,  19. 

Ames,  Fisher,  209,  311;  member  of  first 
Congress  (1789),  178;  quoted,  195, 
196  n.,  281  ;  oration  by,  defending 
Jay  treaty,  222 ;  opinion  of,  of 
Ellsworth,  230-231  ;  letters  of,  237, 
335  ;  on  result  of  Ellsworth's  mission 
to  France,  314. 

Ames's  Works  cited,  195,  196,  209,  230, 
281,  314. 

"Ancient  Windsor,"  Stiles's,  cited,  9, 10, 
n,  118. 

Andrews,  W.  G.,  cited,  36  n. 

Annapolis  Convention,  the,  117. 

Appeals,  Committee  of,  and  Court  of, 
appointed  by  Continental  Congress, 
58-59,  65-66,  70-71. 

Aristogiton,  nom  de  plume,  259. 

Army,  question  of  payment  of  Continen 
tal,  56,  63,  90,  102-103. 

Arnold,  Benedict,  47,  50,  60,  69,  83. 

Articles  of  Confederation,  before  the 
states,  56,  62,  64 ;  put  in  force,  84 ; 
matter  of  revenue  under,  87  ff. 

Assumption  of  state  debts,  question  of, 
204-207. 

Avery,  Waightstill,  1 6,  18. 

Baldwin,  Abraham,  in  Constitutional 
Convention,  144. 

Baldwin,  Simeon,  171  n. 

Bancroft,  cited,  97,  103,  123,  127. 

Bank,  national,  207-208. 

"Baptist  Petition,"  329-330;  Ells 
worth's  report  on,  330-331. 

Bassett,  Richard,  181. 

Beardsley,  E.  E.,  cited,  36  n. 

Bedford,  Gunning,  1 8,  143,  144. 

Bellamy,  Rev.  Dr.  Joseph,  12-13. 

Benjamin,  Judah,  III. 

Benson,  Egbert,  196. 


362 


INDEX 


Bishop,  W.  W.,  305  n. 

Blair,  John,  197. 

Bland,  Theodoric,  103. 

Bliss,  William,  cited,  22. 

Blue  Laws  of  Connecticut,  109-111. 

Bonaparte,  Joseph,  286,  294,  297-298, 
305,  308. 

Bonaparte,  Napoleon,  American  envoys 
and,  283-284,  294  ff.,  305-310. 

Boutell,  L.  H.,  cited,  45,  123,  170. 

Brackenridge,  Hugh  H.,  18. 

Brainerd  vs.  Fitch,  case  of,  332. 

Brearly,  delegate  to  Constitutional  Con 
vention,  139. 

British-debts  cases,  248-250. 

Brother  Jonathan,  origin  of  sobriquet 
of,  46. 

Brown,  messenger,  65,  78. 

Brown  vs.  Barry,  case  of,  250-251. 

Burke,  ^Edanus,  196. 

Burr,  Aaron,  student  at  Princeton,  18; 
in  second  Congress  (1791),  209; 
opinion  of  Ellsworth,  225 ;  Hamil 
ton's  opposition  to,  314,  325  ;  ties 
Jefferson  for  presidency,  316. 

Butler,  Daniel,  cited,  13. 

Butler,  Pierce,  185,  192. 

Cabot,  George,  fellow-senator  of  Ells 
worth,  209,  212,  215,  222,  227,  231 ; 
letters  of,  237;  attitude  of,  during 
Anglo-French  complications,  273, 
274,  275,  311  ;  quoted  on  result  of 
Ellsworth's  mission  to  France,  312  ; 
Ellsworth  visits,  on  return  from 
abroad,  326. 

"Cabot,"  Lodge's,  cited,  280,  294,  311, 

3'5- 
Calhoun,  John  C.,  praise  of  Ellsworth 

by,  164-165,  176. 
Capital,  location  of,  204-205. 
Carson,  H.  L.,  cited,  71  n. 
"  Castle  Rittenhouse,"  70. 
Censuses,  question  of,  in  Constitutional 

Convention,  147. 
Chase,  Samuel,  239,  240,  241,  249,  257  ; 

Jared  Ingersoll  incident,  243. 
Church  at  Windsor,  328-329. 
Clap,  President  Thomas,  13,  14,  15,  16. 
Clark  vs.  Russell,  case  of,  250-251. 


Cliosophic  Society,  the,  19-20. 

College  of  New  Jersey,  in  Ellsworth's 
youth,  17-20;  degree  conferred  on 
Ellsworth  by,  334. 

"College  of  New  Jersey,"  MacLean's, 
cited,  17  n.,  19. 

Committee  of  Appeals,  Continental  Con 
gress,  58-59,  65-66,  70-71. 

Committee  of  the  Pay  Table,  48-50. 

Committee  to  report  a  constitution, 
chosen  by  Constitutional  Conven 
tion,  158. 

Committees  of  Continental  Congress, 
55>  58,  59,  60,  67-71,  73-74,  79,  96, 
97,  101,  102,  103. 

Committees  of  first  Senate  (1789), 
181-182. 

Connecticut,  effect  of  position  of,  on 
historical  importance,  5-6 ;  in  the 
Revolution,  44-50 ;  Western  claims 
of,  63-64 ;  quota  of,  in  establishment 
of  Continental  treasury,  65  ;  agree 
ment  of,  concerning  laws  limiting 
prices,  72 ;  courts  of,  108-109 ;  at 
titude  of,  toward  common  law, 
109-111;  Blue  Laws  of,  109-111; 
delegates  of,  to  Constitutional  Con 
vention,  118;  the  so-called  "plan" 
of,  in  Constitutional  Convention, 
123,  127;  ratification  of  Constitu 
tion  by,  discussed,  171-175. 

Connecticut  convention  of  1788,  171- 
175  ;  Ellsworth's  speech  in,  350-360. 

Connecticut  Courant,  speech  of  Ells 
worth  incorrectly  reported  in,  171- 
172;  Ellsworth's  agricultural  contri 
butions  to,  336-338. 

Constitutional  Convention,  call  for, 
117  ;  meeting  of,  118  ;  various  plans 
for  improved  mode  of  government, 
121  ff.;  politics  in,  129;  discussions 
and  debates,  130  ff. ;  compromise  ef 
fected,  148-150;  development  of  the 
Constitution,  158  ff. ;  return  home  of 
Connecticut  delegates,  168-170. 

Consular  service,  acts  bearing  on,  201, 
209. 

Continental  Congress,  delegates  to,  from 
Connecticut,  5 1 ;  Ellsworth's  irreg 
ularity  in  attendance  at,  53;  char- 


INDEX 


363 


acter  of  membership  of,  54-55; 
committees  of,  55,  58,  59,  60,  67-71, 
73-74,  79»96,  97,  ioi»  !02, 103;  mat 
ter  of  army  supplies  in,  56,  69,  73, 
75,  85;  notable  members  of,  57; 
question  of  finances  in,  62-63,  65, 
72,  75-79,  84,  85,  87,  88,  89-97, 
102-105;  hesitation  of,  to  establish 
a  federal  court,  66-67;  case  °f  the 
Active  before,  68-69;  Court  of  Ap 
peals  in  Cases  of  Capture  appointed, 
71;  Hamilton  and  Madison  potent 
forces  in,  86,  91-93;  peace  treaty 
before,  98-102;  mutinous  troops 
menace,  102;  removal  of,  to  Prince 
ton,  103;  end  of  Ellsworth's  service 
in,  103. 

Court  of  Appeals  in  Cases  of  Capture, 
appointment  of,  71. 

"  Court  of  Assistants  "  in  Connecticut,  108. 

Courts,  of  Connecticut,  108-109;  estab 
lishment  of  federal,  184-199;  mari 
time  authority  of,  254-256.  See 
Superior  Court. 

Currency,  question  of,  in  Continental 
Congress,  62,65,  72,  73»  75~77»  79, 84. 

Cushing,  William,  197,  249,  261 ;  offered 
Chief  Justiceship,  239. 

Dartmouth  College,  degree  conferred  on 
Ellsworth  by,  334. 

Davie,  William  R.,  in  Constitutional 
Convention,  142,  152;  member  of 
embassy  to  France,  273,  277,  278, 
279,  280,  310,  313;  Napoleon's  im 
pression  of,  282. 

Davis,  J.  C.  Bancroft,  cited,  67,  71  n. 

Day,  Thomas,  court  reporter,  331-332. 

Deane,  Silas,  60. 

Debating  clubs  at  Princeton,  19-20. 

Debt,  national,  in  first  Congress,  204- 
207. 

Debts,  suits  dealing  with,  owed  to 
Britons,  248-250. 

Degrees  conferred  on  Ellsworth,  334. 

Denning,  William,  105  n. 

Dexter,  F.  B.,  cited,  13,  14,  15. 

Drayton,  William  Henry,  57. 

Duties,  question  of,  in  first  Congress, 
202-204. 


Dwight,  Dr.    Timothy,  quoted,  36-37, 

41,  342. 
Dyer,  Eliphalet,  51,  60,  64. 

Edwards,  Jonathan,  9,  13. 

Edwards,  Pierpont,  18,  191  n.;  on  Ells 
worth's  eloquence,  174-175. 

Ellsworth,  English  hamlet,  322. 

Ellsworth,  Abigail  (daughter  of  Oliver 
Ellsworth),  235,  236. 

Ellsworth,  Abigail  Wolcott(  wife),  23-24. 

Ellsworth,  David  (father),  u,  12. 

Ellsworth,  David  (brother),  Oliver  Ells 
worth's  letters  to,  53  n.,  54  n.,  60-62, 
74,  76,  213-214,  302-303. 

Ellsworth,  Henry,  301. 

Ellsworth,  John,  of  London,  322. 

Ellsworth,  Jonathan,  10-11. 

Ellsworth,  Josiah,  9-11. 

Ellsworth,  Martin,  235,  300,  301. 

Ellsworth,  Oliver,  causes  of  neglect  of, 
3-5;  family  of,  9- 1 1,  322  ;  boyhood 
of,  12;  at  Yale,  13-17;  at  Prince 
ton,  17-20  ;  theological  and  legal 
studies  of,  20-23  '•>  farming  and  law 
practice  of,  24—29  ;  personal  appear 
ance  of,  28  ;  attains  first  successes, 
30;  member  of  General  Assembly, 
30-31  ;  acquires  reputation  and 
means,  32-34  ;  oratory  of,  35-37, 
40,  142,  174-175*  33*-332;  mem 
ber  of  Committee  of  Pay  Table,  48- 
50  ;  letters  to  Governor  Trumbull, 
49,  54 ;  member  of  Council  of 
Safety,  50-51  ;  chosen  state's  attor 
ney,  51  ;  elected  to  Continental  Con 
gress,  51  ;  in  Continental  Congress, 
53-106;  member  of  committees  of 
Continental  Congress,  58-59,  60, 67- 
68,  70-71,  73,  97,  101,  102-103  5 
style  of  letters  of,  60-62,  237  ;  dele 
gate  to  Hartford  convention  (1779), 
72 ;  member  of  governor's  council, 
83  ;  first  reported  speech  of,  in 
Continental  Congress,  91-92  ;  mem 
ber  of  Connecticut  Superior  Court, 
108-116;  in  Constitutional  Con 
vention,  118-168;  Major  William 
Pierce's  impression  of,  119-120; 
"the  government  of  the  United 


INDEX 


States"  named  by,  128-129; 
speeches  of,  in  Constitutional  Con 
vention,  130-133, 136-143*  15  *»  J54- 
155,  159-164,  166-168;  work  of, 
compared  with  Roger  Sherman's, 
150-151  ;  opinions  of,  on  slavery 
and  representation,  152-157  ;  mem 
ber  of  committee  to  report  a  consti 
tution,  158  ;  Calhoun's  eulogy  of, 
164-165  ;  work  of,  in  Hartford  con 
vention  to  ratify  Constitution,  171- 
174  ;  Webster's  tribute  to,  175-176  ; 
elected  to  first  Senate,  177  ;  services 
of,  in  Senate,  181-222  ;  monumental 
work  of,  on  judiciary  bill,  184-199; 
letters  of,  to  Judge  Law,  188-191, 
213  ;  Rhode  Island  forced  into  the 
Union  by,  200-201  ;  speech  of,  on 
President's  power  of  removal  of 
officers,  202  ;  attitude  of,  on  French 
question,  212-214;  interview  of, 
with  Washington  concerning  mis 
sion  to  England,  215-216  ;  anxiety 
over  Jay  treaty,  219-221  ;  appointed 
Chief  Justice,  222,  238-240  ;  John 
Taylor's  interview  with,  228-230;  de 
cisions  of,  on  Supreme  Bench,  248- 
265  ;  ruling  of,  bearing  on  natural 
ization,  257-265  ;  attitude  toward 
Alien  and  Sedition  acts,  265-266, 
270-272 ;  named  member  of  em 
bassy  to  France,  273  ;  stay  abroad, 
282-326 ;  effect  of  Napoleon  on, 
284 ;  Napoleon's  impression  of, 
284 ;  talks  with  Talleyrand  and 
Volney,  285  ;  visit  of,  to  England, 
310,  320-326 ;  last  years  of,  at 
Windsor,  327-343 ;  religious  life 
of,  327-329  ;  report  of,  on  so-called 
Baptist  Petition,  330-331  ;  member 
of  state  legislature,  331  ;  edits  agri 
cultural  column  in  Connecticut  Cou- 
rant,  336-338 ;  children  of,  340 ; 
death  of,  343. 

Ellsworth,  Oliver,  Jr.,  n  n.,  12,  169, 
235  ;  secretary  to  embassy  to  France, 
282,  308,  309,  310  ;  French  notes 
by,  282-284,  301,  305-308  ;  Ms.  of, 
cited,  334,  338  ;  death  of,  340. 

Ellsworth,  W.  W.,  175,  176  n.,  301,  340. 


Ellsworth  family,  origin  of,  9,  322. 

Elmwood,  Washington  visits  Ellsworth's 
home  at,  232-234  ;  John  Adams  at, 
277-278;  Ellsworth's  last  years  at, 
339-340. 

England,  relation  of  United  States  to 
contest  between  France  and,  21 1- 
214 ;  Jay's  mission  to,  215-222  ; 
Ellsworth  visits,  310,  321-326. 

Erskine,  Thomas,  321. 

Evarts,  Jeremiah,  cited,  168. 

Everett,  Edward,  185. 

"  Farmer's  Repository  "  column  in  Con 
necticut  Courant,  336—338. 

Farrand,  Max,  cited,  7  n. 

Few,  Congressman,  181. 

Finances,  matter  of,  in  Continental  Con 
gress,  62-63,  65,  72,  75-79,  84,  85, 
87,  88,  89-97,  102-105. 

Finley,  President  Samuel,  18. 

Flanders,  Henry,  cited,  23,  26,  35,  43, 
113,  171,  172,  186,  200,  213,  243, 
250,  265,  270,  276, 279,  291, 305, 317, 
318,  324,  326. 

Fleurieu,  M.,  286,  309. 

France,  complications  of  United  States 
with,  over  Anglo-French  contest, 
211-212  ;  popular  sympathy  with, 
215  ;  trouble  with,  caused  by  Jay 
treaty,  267  ;  Pinckney  rejected  as  am 
bassador  by,  267;  Marshall,  Pinck 
ney,  and  Gerry  sent  to,  276-268  ; 
Adams's  firm  stand  with,  268-269 ; 
Ellsworth,  Davie,  and  Murray  ap 
pointed  envoys  to,  273 ;  arrival  of 
envoys  in,  280-283  ;  various  attempts 
at  an  understanding  with,  284-298  ; 
contrast  between  methods  of  Ameri 
can  ministers  and  those  of,  292-293  ; 
convention  with,  completed,  298-300; 
Ellsworth's  letters  home  from,  300- 
304  ;  festivitities  in,  on  conclusion 
of  convention,  305-310;  departure 
of  envoys  from,  310  ;  ratification  of 
convention  with,  by  the  United  States, 

317. 

Franklin,  Benjamin,  57  ;  in  Constitu 
tional  Convention,  134,  145. 

Freneau,  Philip,  18. 


INDEX 


365 


Gallatin,  Albert,  209. 

Galvez,    expedition    of,    against    West 

Florida,  80. 

Garrow,  English  barrister,  321-322. 
Genet,  "Citizen,"  211,  213,  288. 
Gerry,  Elbridge,  57,  146,  148,  161,  192; 

member  of  embassy  to  France,  267- 

268. 
Gibbs,   cited,    206,  211,  214,  216,  223, 

227,  271,  277,  280,  303,  312,  313. 
Gladstone,  W.  E.,  comments  on  remark 

of,  58  n. 

Glass  vs.  the  Sloop  Betsy,  case  of,  255. 
Goodrich,  Professor,  cited,  26,  32  n. 
Gore,  Christopher,  230. 
Gorham,     delegate     to     Constitutional 

Convention,  135,  157,  158. 
Grant,  Roswell,  15. 
Green,  Dr.  Samuel  A.,  54  n. 
Griswold,  Governor  Roger,  21. 
Grose,  Judge,  321,  322. 
Gunn,  Senator,  227,  314. 

Hamilton,  Alexander,  in  Continental 
Congress,  86,  88-89,  9'f  92,  93,  96, 
97,  98,  101,  102,  103,  105  ;  Madison 
complementary  to,  93  ;  in  Constitu 
tional  Convention,  1 1 8, 122,125, 127- 
128,  131,  133-134,  135  J  contempt 
of  democracy  of,  122,  183  ;  Secre 
tary  of  Treasury,  203-204  ;  counsel 
in  Hylton  vs.  United  States,  248  ; 
many  Federalists  regard,  as  leader 
rather  than  President  Adams,  264- 
265  ;  feud  of,  with  Adams,  269-270, 
272,  278-279,  314  ;  supports  Ells 
worth's  convention  with  France,  314- 
315 ;  attitude  of,  after  Republican 
triumph  (1800),  325. 

Hamilton's  Works  cited,  314,  315,  316. 

Hamilton,  J.  C,  cited,  214,  216. 

Hartford,  convention  held  at,  in  1779, 
72  ;  convention  at,  for  ratification  of 
Constitution,  171—175. 

Hart  vs.  Smith,  case  of,  112-115. 

Hayden,  Jabez  H.,  cited,  24  n. 

Hayden,  Sergeant  "  Sam,"  338. 

Henry,  John,  18,  19. 

Henry,  Patrick,  57,  170  n.,  249,  273. 

Hillhouse,  James,  335. 


Hoar,  George  Frisbie,  cited,  151,  165, 

223. 

Hoar,  Samuel,  letter  of,  quoted,  236. 
Holcomb,  Elizabeth,  9. 
Hollister,  G.  H.,  41-42,  45  n. 
Holton,  Samuel,  Ellsworth's   letter   to, 

117  n. 

Hopkinson,  Judge  Joseph,  227  n. 
Hosmer,  Titus,  33,  51,  71. 
Hubbard,  Fordyce  M.,  cited,  284. 
Hunt,  Gaillard,  228,  230  n.;  citations  of, 

see  "  Madison's  Writings." 
Huntington,  Benjamin,  52,  103. 
Huntington,  Samuel,  51,  52,  103,  170. 
Hutchins,  Mrs.  Waldo,  237  n.,  302  n. 
Hylton  vs.  United  States,  case  of,  248. 

Ingersoll,  Charles  Jared,  243. 
Ingersoll,  Jared,  44-45. 
Iredell,  James,  239-240,  249,  251,  254. 
Irvine  vs.  Sim's  Lessee,  case  of,  251. 

Jackson,  Representative,  196. 

Jackson,  Rev.  Abner,  cited,  9,  19,  30, 
171,  237,  245,  284,  302,  308,  329, 
338,  339,  34i  ;  quoted,  26  n. 

Jameson,  J.  Franklin,  cited,  67,  71  n.,  168. 

Jay,  John,  57  ;  named  first  Chief  Justice, 
197  ;  mission  of,  to  England,  211- 
212,  215-222;  governor  of  New 
York,  222;  opinion  of,  concerning 
Ellsworth,  230 ;  utterances  about 
Supreme  Court,  241. 

Jay  treaty,  217-222,  296,  299,  300,  319; 
difficulties  with  France  over,  267, 
287-289,  293,  296 ;  Ellsworth's  con 
vention  with  France  compared  with, 
319-320. 

Jefferson,  Thomas,  57,  183  ;  Ellsworth's 
severe  judgment  of,  324-325. 

Jennings  vs.  the  Brig  Perseverance, 
case  of,  253. 

Johnson,  William  Samuel,  33,  35-36, 
1 1 8,  135,  157  ;  elected  senator  from 
Connecticut,  177 ;  becomes  presi 
dent  of  Columbia  College,  177;  on 
Ellsworth  as  a  senator,  223. 

Johnston,  Alexander,  opinion  of,  con 
cerning  Connecticut,  6-7  ;  on  Con 
necticut  Blue  Laws,  109. 


366 


INDEX 


Journal  de  Paris,  quoted,  306  n. ;  cited, 
308  n.,  309. 

Journals  of  Continental  Congress,  com 
ments  on,  58;  Madison's  notes  sup 
plement,  86. 

Judiciary  bill,  Ellsworth's,  181,  184- 
199. 

Kenyon,  Lord,  Ellsworth  and,  321. 

King,  C.  R.,  cited,  131,  136,  141,  217, 
275. 

King,  Rufus,  in  Constitutional  Conven 
tion,  143,  144,  148;  senator  from 
New  York,  179,  185  n.,  209,  215, 
217,  222,  274;  John  Taylor's  inter 
view  with,  228-230;  minister  to 
England,  231,  316-317;  Ellsworth's 
letters  to,  quoted,  317-319,  323, 
325-326,  328. 

Kirby,  Ephraim,  111-112,  113. 

Langdon,  Senator,  209-210. 

Lansing,  delegate  to  Constitutional  Con 
vention,  118,  134,  136,  149. 

Laurens,  Henry,  57. 

La  Vengeance,  case  of,  255-256. 

Law,  English  jurist,  321. 

Law,  Judge  Richard,  257;  Ellsworth's 
letters  to,  188-191,  213. 

Lawrence,  Representative,  196. 

Laws  for  limiting  prices,  72. 

Leavitt,  Jemima,  II,  12. 

Lee,  Arthur,  60. 

Lee,  Charles,  56. 

Lee,  Henry,  18. 

Lee,  Richard  Henry,  in  Constitutional 
Convention,  57,  59 ;  in  first  Con 
gress,  178;  and  judiciary  bill,  186, 
192. 

"  Letters  of  a  Federalist  Farmer,"  R. 
H.  Lee's,  192. 

Liancourt,  Due  de,  244. 

Libraries,  beginning  of  history  of  Con 
gressional  and  State  Department,  97. 

Lincoln,  Abraham,  Ellsworth's  style 
compared  with  that  of,  264. 

Linn,  John  Blair,  quoted,  225  n. 

Livermore,  Representative,  195,  196. 

"  Lives  and  Times  of  the  Chief  Jus 
tices,"  etc.,  cited,  23  n. 


Lodge,  H.  C.,  cited,  16,  151,  214,  216, 

273,  275,  280,  294,311. 
London,  Ellsworth  in,  321. 
Lusk,  Moses,  IIO-IH. 

McDonough    vs.    Delancey,    case    of, 

255- 
Maclay,  character  of,  179-180;  diary  of, 

180-181;    quoted  on    judiciary  bill, 

I93~I95J   °n  Ellsworth,  224,  225. 
Maclay's  Journal   cited,  179,   180,  182, 

183,  185,  192,   193,  194,    195,    200, 

2OI,  2O3,  205,  2O8,  212. 

McRee,  Griffith  J.,  cited,  239,  248,  251, 

253. 

Madison,  James,  at  Princeton,  18,  19 ; 
in  Continental  Congress,  74,  84,  86, 
89,  90,  101  ;  notes  of,  in  Continental 
Congress,  86 ;  talents  of,  comple 
mentary  to  Hamilton's  genius,  93  ; 
misspelling  of  New  England  proper 
names  by,  94  n. ;  in  Constitutional 
Convention,  122,  128,  133,  134,  135, 
141, 145,  147,  167  ;  notes  on  Consti 
tutional  Convention  cited,  126,  129, 
167-168;  in  first  House  of  Repre 
sentatives,  179, 183-184,  196;  quoted 
concerning  judiciary  bill,  185  ;  first 
tariff  bill  originates  with,  202  ;  quoted 
concerning  Ellsworth,  226 ;  John 
Taylor's  report  to,  on  King  and 
Ellsworth  interview,  228-230. 

"Madison's  Writings"  cited,  17,  19,  76, 
78,  89,  92,  93,  94,  97,  98,  99,  101,. 
102, 103,  118,  136,  141,  226;  quoted, 

93.  94,  98,  99- 

Marshall,  John,  2,  69,  247-248,  261, 304  ; 
argument  of,  in  British-debts  case, 
249  ;  comparison  of  Ellsworth  and, 
263-264 ;  member  of  embassy  to 
France,  267-268 ;  advises  ratifica 
tion  of  Ellsworth's  convention  with 
France,  315. 

Martin,  Luther,  18,  20,  129,  134,  147, 
149,  153,  192;  cited,  126,  144,  147. 

Mary  Ford  decision,  255. 

Maryland,  importance  of  delay  of,  in 
subscribing  to  Articles  of  Confedera 
tion,  64. 

Mason,  George,  146,  154,  155,  159,  163, 


INDEX 


367 


165,  167,  192;  quoted  regarding 
Constitutional  Convention,  169. 

Military  establishment,  the,  201,  210. 

Mills,  W.  Jay,  cited,  20. 

Mitchell,  Stephen  Mix,  178  n. 

Monmouth,  battle  of,  56. 

Monroe,  James,  216,  266-267,  289. 

Moodie  vs.  the  Ship  Phoebe  Ann,  case 
of,  256. 

Morris,  Gouverneur,  in  Continental  Con 
gress,  57,  6 1  ;  in  Constitutional  Con 
vention,  122, 145,  147, 148,  152,  164; 
on  result  of  Ellsworth's  mission  to 
France,  315-316;  inveighs  against 
the  Union,  335. 

Morris,  Robert,  member  of  Continental 
Congress,  57  ;  investigation  of  army 
purchases  of,  59  ;  Continental  finan 
ces  and,  76,  79,  84,  87,  102,  105  ; 
letter  from,  to  Franklin,  87-88 ;  no 
speech  credited  to,  in  Constitutional 
Convention,  129;  in  first  Congress 
(1789),  179,  185  n. 

Morrison,  John  H.,  cited,  230  n. 

Murray,  William  vans,  272,  273,  286, 
3°9»  3!3- 

Napoleon.  See  Bonaparte. 
Naturalization,  question  of,  in  United 

States  courts,  257-262. 
Navigation  acts,  discussion  concerning, 

in  Constitutional  Convention,  153- 

157. 

Negro  slaves  and  estimation  of  popula 
tion,  147,  152-153. 

New  Jersey,  Washington's  requisitions 
on,  73,  75. 

New  York,  Congress  meets  at  (1789), 
178. 

New  York  resolutions,  the,  88,  97. 

Nicholas,  George,  259-260. 

Offices,   President's   power   of  removal 

from,  20 1 -202. 
Olmstead,  Gideon,  68,  188. 
Otis,  H.  G.,  45  ;  on  result  of  Ellsworth's 

mission  to  France,  314. 

Parker,  Alton  B.,  260  n. 
Parker,  Moses,  no. 


"  Particular  Court "  in  Connecticut, 
1 08. 

Paterson,  William,  18,  20,  126,  148; 
plan  of,  in  Constitutional  Conven 
tion,  123-124,  127-128, 130;  in  first 
Senate  (1789),  181  ;  associate  jus 
tice  of  Supreme  Court,  241,  249, 

253. 

Pay  Table,  Committee  of  the,  48-50. 

Pickering,  Timothy,  264,  273,  274,  275, 
278,  281,  289,  304,  31!,  319,  335; 
letters  from  Ellsworth  to,  266,  270- 
271,  276,  278,  290,  303  n. ;  on  result 
of  Ellsworth's  mission  to  France,  313. 

Pierce,  Major  William,  quoted,  118-120. 

Pinckney,  Charles,  144-145,  157. 

Pinckney,  Charles  Cotesworth,  144-145, 
147,  155,  157,  266-267. 

Plain  Speaking  Club,  the,  19. 

"Plan  of  Connecticut,"  the  so-called, 
123,  127-128. 

Porter,  J.  A.,  cited,  20. 

Prices,  limitation  of,  by  law,  72. 

Princeton,  American  victory  at,  56 ; 
Continental  Congress  temporarily  at, 
103  ;  Ellsworth's  relations  with  the 
college  at,  see  College  of  New 
Jersey. 

Privateering,  matter  of,  in  Continental 
Congress,  66-69,  7°~7l  '•>  jurisdiction 
of  courts  in  cases  concerning,  254- 
256 ;  treated  by  Ellsworth  embassy 
to  France,  287-289,  291,  293-297, 
297»  299-300,  317. 

Putnam,  Israel,  45,  46,  47,  50. 

Randolph,  Edmund,  in  Constitutional 
Convention,  121,  148,  158,  192; 
Secretary  of  State,  217;  dealings 
with  French  minister,  219. 

Read,  George,  122. 

Reeve,  Tapping,  18,  20. 

Rex  vs.  Waddington,  case  of,  321. 

Rhode  Island  forced  to  join  the  Union, 

200. 

Rittenhouse,  David,  69. 
Roederer,  M.,  286,  306  n.,  308-310. 
Roosevelt,  Theodore,  155,  260  n. 
Root,  Jesse,  21,  60,  64,  108,  113. 
Rowland,  Miss,  cited,  169. 


368 


INDEX 


Rush,  Benjamin,  18. 

Rutledge,  John,  57,  85,  86,  89,  91,  94, 
98,  125,  153,  158,  192;  becomes 
associate  justice  of  Supreme  Court, 
197;  attacks  Jay  Treaty,  218-219, 
238 ;  named  Chief  Justice  but  not 
confirmed  by  Senate,  238-239. 

Salaries  of  government  officials,  2OI. 

Scott,  English  jurist,  321. 

Sedgwick,  Theodore,  196,  314. 

Sherman,  Roger,  5,45;  appointed  dele 
gate  to  Continental  Congress,  51; 
Ellsworth  claims,  as  his  model,  57; 
reports  of,  with  Ellsworth,  to  Gov 
ernor  Trumbull,  60,  67,  75,  76, 
78,  83-84;  member  of  Connecti 
cut  Superior  Court,  108;  elected 
to  Constitutional  Convention,  118; 
William  Pierce's  description  of,  119; 
services  in  the  Convention,  120,  123, 
125,  126,  127,  128,  139,  150-151, 

152,  161;  work  of,  in  the  Conven 
tion,     compared    with    Ellsworth's, 
150-151;   represents  Connecticut  in 
the  House  and  in  Senate,  177-178, 
196;   death  of,  178. 

"Sherman,"  Boutell's,  45,  123,  170. 
Sherman,  Roger  Minott,  342. 
Sigourney,  Mrs.,  cited,  30,  326. 
Slavery,  discussions  regarding,  in  Con 
stitutional    Convention,     147,    152- 

153,  153-157. 
Smalley,  Dr.  John,  21. 
Smith,  Jeremiah,  230. 
Smith,  Samuel  Stanhope,  19. 
Smith,  William,  196. 

Snuff-box  presented  to  Ellsworth  by  Na 
poleon  Bonaparte,  225. 

Snuff-taking,  Ellsworth's  habit  of,  225, 
305,  340-341. 

Spaniards  on  Gulf  Coast  during  Revo 
lution,  80. 

Stiles,  Henry  R.,  cited,  9,  10,  n,  118. 

Stiles,  President  Ezra,  168. 

Stone,  Congressman,  196. 

Story,  Judge,  261. 

Strong,  Caleb,  148,  181,  194,  209,  215, 
222,  231. 

Stuart,  Mrs.  Geneve,  cited,  17. 


Sumner,  W.  G.,  cited,  87. 

Sumter,  Thomas,  196. 

Superior  Court  of  Connecticut,  108. 

Supplies,  matter  of,  in  Continental 
Congress,  56,  69,  73,  75,  85. 

Supreme  Court  of  United  States,  Com 
mittee  of  Appeals  a  forerunner  of, 
58-59;  Ellsworth's  appointment  to 
Chief  Justiceship  of,  222,  238-240; 
early  character  of,  241 ;  work--  of, 
244-245;  noteworthy  cases  before, 
247-267.  See  also  Judiciary  bill. 

Susquehanna  lands,  the,  63,  66. 

Taintor,  G.  E.,  60  n.,  300  n.,  302  n. 

Taintor,  Mrs.  Henry  E.,  234  n. 

Talleyrand,  American  envoys  and,  267, 
268,  272,  282, 285,  309. 

Tariff,  first  bill  on,  202-204. 

Taylor,  John,  227-230. 

Teft,  Mr.,  of  Savannah,  302  n. 

Thiers,  cited,  305,  307,  320. 

Thompson,  R.  E.,  328. 

Titles,  Congressional  committee  on, 
182. 

Tracy,  Uriah,  243  n. 

Trenton,  American  victory  at,  56;  seat 
of  national  government  temporarily 
at,  277;  meeting  of  statesmen  at, 
278-280. 

Trevelyan,  Sir  George  Otto,  cited,  82  n. 

Trumbull,  Dr.  John,  quoted,  35. 

Trumbull,  Jonathan,  governor  of  Con 
necticut,  46,  47,  48,  50,  59;  Ells 
worth's  letters  to,  49,  54  ;  letters  to, 
from  delegates  to  Continental  Con 
gress,  54-55,  57,  60,  62,  64,  73,  75, 
76-77,  78,  79-82,  83,  96,  99,  101, 
102,  103-104,  347-349;  charge  of 
disloyalty  against,  85-86. 

Trumbull,  Jonathan  (second),  178  n., 
332. 

Trumbull,  Colonel  Joseph,  59,  65. 

Trumbull,  J.  Hammond,  cited,  21. 

Trumbull  Papers  cited,  62,  64,  73,  75, 
76,  78,  80,  84,  96,  99,  101,  103,  108. 

Tucker,  Congressman,  196. 

Turner  vs.  the  President,  Directors,  and 
Company  of  the  Bank  of  North 
America,  case  of,  254. 


INDEX 


369 


United  States  vs.  Henfield,  258. 
United  States  vs.  Hudson,  260  n. 
United  States  vs.  Peters,  69. 
"Universities  and  their  Sons"  cited,  17, 
19,  20. 

Van  Santvoord,  George,  cited,  30,  55, 
84,  no,  112,  113,  116,  258,311,332. 

Verplanck,  Gulian  C,  37  n. 

Vinal,  W.  Irving,  9,  1 1,  237  n.,  302  n., 
328,  333>  341. 

Virginia,  debts  owed  to  Britons  in,  248- 
250. 

Virginia  plan,  the,  121  ff. 

Volney,  Ellsworth  and,  285. 

Wadsworth,  Colonel,  6,  174. 

Walker,  Williston,  cited,  328. 

Ware  vs.  Hylton,  case  of,  248-250. 

Washington,  Bushrod,  241. 

Washington,  George,  2,  4,  32,  41,  56, 
57 ;  letter  to  Continental  Congress 
regarding  establishment  of  a  prize 
court,  66-67  >  letter  to  Hamilton  on 
Constitutional  Convention,  146-147  ; 
opinion  of  work  of  Constitutional 
Convention,  169 ;  Ellsworth's  re 
mark  on  small  part  taken  by,  in 
Constitutional  Convention,  169—170; 
inauguration  of,  1 79  ;  and  matters  of 
state  etiquette,  183;  signs  judiciary 
bill,  197  ;  and  the  Jay  mission  to  Eng 
land,  215-219 ;  Ellsworth's  rela 
tions  with,  232-233  ;  New  England 
homes  distinguished  by  visit  of,  233. 

Washington's  Diary  cited,  232. 

Washington's  Writings  cited,  66,67, 146. 

W7ebster,  Daniel,  on  Ellsworth,  175-176. 

Webster,  Noah,  32-33,  116,  336. 

"  Webster  (Noah),"  Scudder's,  cited,  32. 

Well  Meaning  Club,  the,  19. 

Western  Reserve  lands,  63-64,  97. 

Wheaton  vs.  Peters,  case  of,  260  n. 

Whiskey  Rebellion,  204,  210. 

Williams,  Isaac,  ruling  in  case  of,  257- 

259- 

Wilson,  James,  delegate  to  Continental 
Congress,  89,  91,  94,  97 ;  figures  in 
Constitutional  Convention,  124,  125, 
127,  133,  139,  145,  147,  158,  166  n.; 

26 


associate  justice  of  Supreme  Court, 
197,  239,  249,  252,  254  ;  bankruptcy 
and  death  of,  240. 

Wilson,  Woodrow,  cited,  17,  18. 

Wilson  vs.  Daniel,  case  of,  253-254. 

Windsor,  Conn.,  description  of,  8; 
family  names  in,  8-9  ;  Washington's 
visit  to,  232-234 ;  President  Adams 
at,  277-278;  Ellsworth's  arrival  at, 
from  abroad,  326 ;  church  society 
and  meeting-house  in,  328-329. 

Wingate,  Congressman,  181. 

Wiscart  vs.  Dauchy,  case  of,  252-253. 

Witherspoon,  John,  17-18,  57. 

Wolcott,  Abigail  (Mrs.  Oliver  Ells 
worth),  23-24. 

Wolcott,  Erastus,  118. 

Wolcott,  Frederic,  206. 

Wolcott,  Oliver,  delegate  to  Continental 
Congress,  5 1 ,  94 ;  Ellsworth's  letters 

to,  IOO,  IO2,  213-214,  2I6-2I7,  222- 

223  ;  governor  of  Connecticut,  222. 

Wolcott,  Oliver,  Jr.,  auditor  of  Treasury, 
206  ;  quoted,  206-267  >  Ellsworth's 
letters  to,  210-211,  220-221,  303- 
304  ;  Secretary  of  Treasury,  219 ; 
attitude  of,  in  Anglo-French  compli 
cations,  264-265,  273,  274,  31 1  ; 
on  result  of  Ellsworth's  mission  to 
France,  312-313. 

Wolcott,  William,  23-24. 

Wolcott  family,  8,  9,  23-24. 

Wood,  Rev.  G.  I.,  cited,  341. 

Wood,  Joseph,  9  n.,  32,  333. 

Wood,  O.  E.,  cited,  216,  341. 

Wood  Ms.  cited,  19,  22,  23,  25,  26,  30, 
33,  loo,  171,  175,  213,  243,  245,  265, 
270,  284,  285,  317,  335. 

Wyckoff,  Mrs.  Alice  L.,  cited,  17. 

Yale,  Ellsworth's  student  career  at,  13- 
17  ;  Ellsworth  a  governor  of,  333- 
334 ;  degree  conferred  on  Ellsworth 

by,  334- 

"Yale  Biographies  and  Annals,"  Dex- 
ter's,  cited,  13,  14,  15. 

Yates,  delegate  to  Constitutional  Con 
vention,  118,  149;  cited,  130,  131, 
136,  142,  143. 

Young,  Arthur,  336. 


BISMARCK:    Some  Secret   Pages  of  his 
History 

Being  a  Diary  kept  by  DR.  MORITZ  BUSCH  during  twenty-five 
years'  official  and  private  intercourse  with  the  great  chancellor. 
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THE    LIFE    OF    WILLIAM    EWART 
GLADSTONE 

By  the  RT.  HON.  JOHN  MORLEY,  M.P.,  D.C.L.,  LL.D,  author 
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"  That,  as  a  whole,  the  work  is  extremely  interesting  goes  without  saying. 
It  is  written  with  sympathy,  insight,  and  knowledge."  —  New  York  Herald, 


THE  LIFE  OF  NAPOLEON  L    Including 

New  Materials  from  the  British  Official  Records 

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leon  was  not  a  gentleman.'  Mr.  Rose  thinks  that  English  interest  in  him  will 
always  be  pathological  in  its  nature;  that  he  was  morally  and  intellectually,  too, 
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indispensable  to  the  story  of  this  Republic  from  the  Civil  War  to  the  end  of  the 
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ROBERT  MORRIS:  Patriot  and  Financier 

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independence,  so  pathetic  in  its  inglorious  end.  Without  Robert  Morris,  Wash 
ington  could  not  have  saved  the  desperate  cause  of  the  colonies.  His  courage, 
boundless  resources,  and  firmness  in  times  of  public  vacillation,  were  the  salva 
tion  of  the  revolutionary  army.  A  vivid  picture  of  the  difficulties  under  which 
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> 


Book  Slip-20m-9,'60(B3010s4)458 


[ 

12S6S7 

Call  Number: 

E302.6 
EU 
B7 

Brown,  W.O. 
Life  of  Oliver 

in  1  ~™,_4-V. 

B 


E4 

B7 


198657 


